THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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SELECTION  OE  CASES 


ON 


THE  LAW  OF  PLEADING 


UNDER  MODERN  CODES 


BY 


EDWARD    W.    HINTON 

Professok  or  Pi.eading  and  PEAOTifE,  Uki\t:esity  ov  Missouri 


CHICAGO 

CALLAGHAN  &  COMPANY 
1906 


r 


COPVRIGHT, 

1906 

BY 

CALLAGHAN  & 

COMPANY 

PKEFACE 


When  the  editor  began  teaching  Code  Pleading,  there  was  no 
case  book  which  covered  more  than  two  or  three  topics  of  the 
general  subject.  In  consequencCj  this  set  of  cases  has  been  col- 
lected for  class  room  use,  and  is  now  published,  primarily  for 
the  convenience  of  students. 

No  attempt  has  been  made  at  chronological  arrangement,  be- 
cause it  did  not  appear  practicable  to  treat  the  subject  histori- 
cally within  the  time  which  can  reasonably  be  given  to  such  a 
course. 

It  has  been  the  aim  of  the  editor  to  furnish  the  students  with 
the  material  for  an  intelligent  study  of  modem  pleading,  with- 
out attempting  to  deal  with  questions  of  practice  or  the  special 
provisions  of  an.y  particular  code. 

Edward  W.  IIinton. 

Columbia,  Missouri,  September  10th,  1906. 


111 


TABLE  OF  CONTENTS 


CHAPTER  I. 

NATURE  AND  FORMS  OF  ACTIONS. 

Preliminary  Note 1-5 

Section  1.    The  Cause  of  Action 5-45 

Section  2.    One  Form  of  Action ^ 45-138 

Section  3.    Special  Proceedings 138-158 

CHAPTER  II. 


Section  1. 
Section  2. 


Section  3. 


PARTIES   TO    ACTIONS. 

The  Real  Party  in  Interest 159-212 

Joinder  of  Plaintiffs 212 

(a)  Parties  v/ho  may  join 212-249 

(b)  Parties  who  must  join   249-271 

Joinder  of  Defendants 271 

(a)  Parties  who  may  be  joined 272-331 

(b)  Parties  who  must  be  joined 331-353 


CHAPTER  III. 

THE    COMPLAINT. 


Section  1. 


Section  2. 
Section  3. 


The  Facts  Constituting  the  Cause  of  Action. .         354 

(a)  Ultimate     Facts     distinguished    from 
Matters  of  Law  and  Evidence 355-401 

(b)  The  Facts  to  be  Stated 401-462 

The  Prayer  for  Relief 462-482 

The  Union  of  Several  Causes  of  Action 483 

(a)  The  Separate  Statement 484-500 

(b)  What  are  Separate  Causes  of  Action . 500-542 

(c)  Causes  that  may  be  united 542-575 

V 


VJ  TABLE   OF    CONTENTS. 

CHAPTER  IV. 

THE  ANSWER. 

Section  1.  General  and  Specific  Denials 577-634 

Section  2.  New  Matter 634-686 

Section  3.  Equitable  Defences 686-725 

Section  4.  Counter  Claims  725-743 

Section  5.  Union  of  Defences 743-763 

CHAPTER  V. 
The  Reply 764-783 

CHAPTER  VI. 

DEMURRERS. 

Section  1.     Greneral  Nature  of  Demurrers 785-819 

Section  2.     Grounds  of  Demurrer 819-840 


TABLE   OF   CASES 


[befeeences  are  to  the  pages.] 


Agard    v.    Valencia,    39   Cal.    292: 

338. 
American  Trading  Co.  v.  Gottstein, 

123  la.  267:    789. 
Anderson  v.  Case,  28  V/is.  505:    49. 
Anderson  v.  Chilson,   8   S.  D.  G4: 

127. 
Artkur  v.   Rickards,   48  Mo.   298: 

819. 


Bailey  v.  Aetna  Ins.  Co.,  77  Wis. 

336:    479. 
Bailey  v.  Mosher,  63  Fed.  488:   484. 
Bailey  v.  Winn,  101  Mo.  649:    165. 
Bancroft  v.  Haslett,  106  Cal.  151: 

452. 
Bank  v.  German  Am.  Ins.  Co.,  72 

Wis.  535:    425. 
Bank  V.  Hayes,  112  Cal.  75:    175. 
Bank  of  Timmonsville  v.  Fidelity 

Co.,  120  Fed.  315:    399. 
Barker  v.   Wheeler,  62  Neb.   150: 

681. 
Barker  v.  H.  &  St.  J.  Ry.  Co.,  91 

Mo.   86:     439. 
Barlow  v.  Scott,  24  N.  Y.  40:    130. 
Barnes  v.  Quigley,  59  N.  Y.  205: 

45. 
Barr  v.  Post,  56  Neb.  698:  654. 
Bass  V.  Comstock.  38  N.  Y.  21:  837. 
Bauer  v.  Wagner,  39  Mo.  385:  640. 
Baum  V.  Mullen,  47  N.  Y.  577:  336. 
Beck  V.  Beck,  43  N.  J.  Eq.  39:  695. 
Bennett  v.  Bennett,  65  Neb.  432: 

412. 
Benoist  v.  Murrin.  48  Mo.  48:    138. 


Berry  v.  Dole,  87  Minn.  471:  414. 
Bledsoe  v.  Irwin,  35  Ind.  293:  331. 
Bomberger  v.  Turner,  13  Ohio  St. 

263:    577. 
Borden    v.    Gilbert,    13    Wis.    670: 

329. 
Bort  V.  Yaw,  46  la.  323:    218. 
Bowen  v.  Emerson,  3  Or.  452:    8. 
Boyce  v.  Christy,  47  Mo.  70:    522. 
Bradley  v.  Aldrich,  40  N.  Y.  504: 

132. 
Brady  v.  Ball,  14  Ind.  317:    333. 
Brown   v.   Warren,    16    Nev.    228' 

259. 
Bruce  v.  Burr.  67  N.  Y.  237:    747. 
Brunsdeu  v.   Humphrey,  14  Q.  B. 

D.    141:     505. 
Buhne    v.    Corbett,    43    Cal.    264: 

749. 
Buttemere   v.   Hayes,   5   M.   &  W. 

456:    675. 

C 

Cable  V.  St.  L.  M.  R.  &  D.  Co.,  21 

Mo.  133:    261. 
Caddell  V.  Allen,  99  N.  C.  542:    114. 
Campbell  v.  Bannister,  79  Ky.  205: 

767. 
Canfield    v.    Tobias.    21    Cal.    349: 

622. 
Capuro   V.    Builders'    Ins.   Co.,    39 

Cal.  123:     646. 
Carbondale  Invt.   Co.   v.   Burdick. 

67  Kan.  329:    64. 
Carman   v.   Plass,   23   N.   Y.   286: 

294. 
Carter  v.  Eighth  Ward  Bank,  67  N. 

Y.   S.  300:     634. 
Casey  v.  Mason,  S  Okla.  665:    81. 


vu 


Vlll 


TABLE    OP    CASES. 


[eeferekces  are 

Cas3idy  v.  First  National  Bank,  30 

Minn.  86:    181. 
Cederson  v.  Or.  R.  &  N.  Co.,  38  Or. 

343:     370. 
Childs  V.  Bank  of  ivlo.,  17  Mo.  213: 

489. 
Chinn  v.  Trustees,  32  Ohio  St.  236: 

145. 
Christal  v.  Craig,  80  Mo.  367:    447. 
Clark    V.    Finnell,    16   B.    Monroe, 

329:    581. 
Clark  V.  Great  Northern  Ry.  Co., 

31   Wash.    658:     545. 
Clark  V.  C.  M.  &  St.  P.  Ry.  Co.,  2S 

Minn.  69:     365. 
Cobb  V.  Smith,  23  Wis.  261:    462. 
Columbia  Nat'l   Bank   v.   Western 

Iron  Co.,  14  Wash.  162:    626. 
Comm'rs  of  Barton  Co.  v.  Plumb, 

20  Kan.  147:    518. 
Conger  v.  Parker,  29  Ind.  380:    708. 
Considiue  v.  Gallagher,  31  Wash. 

669:     420. 
Conway  v.  Reed,  66  Mo.  346:    78. 
Cook  V.  Finch,  19  Minn.  407:    747. 
Cook  V.  Tallmau,  40  la.  133:    799. 
Cooper  V.  Blair,  14  Or.  25.V.    275. 
Craig  V.  Cook,  28  Minn,  232:    775. 
Craft  Refrigerating  Co.  v.  Quinnl- 
piac  Brewing  Co.,  63  Conn.  551: 
567. 
Crary  v.  Goodman,   12  N.  Y.  266: 

716. 
Creed  v.   Hartman,  29  N.  Y.  591: 

334. 
Curtis  V.  Moore,  15  Wis.  134:    494. 

D 
Dale  V.   Hunneman,  12   Neb.  221: 

718. 
Davis  V.  Houghtelin,  33  Neb.  582: 

394. 
Deer  Lodge  Co.  v.  Kohrs,  2  Mon. 

66:    154. 
Deitrich  v.  Koch,  35  Wis.  618:    742. 
Denner  v.  C.  M.  &  St.  P.  Ry.  Co., 

57  Wis.  218:    111. 
Depuy  V.  Strong,  3  Keyes  603:    257. 
Derby  v.  Gallup,  5  Minn.  119:    759. 


TO    THE    PAGES.] 

Dewey  v.  Carey,  60  Mo.  224:    249. 
De  Wolfe  v.  Abraham,   151  N.  Y. 

186:     573. 
Dimon  v.  Dunn,  15  N.  Y.  498:    587. 
Dix   V.    German   Ins.   Co.,   65   Mo. 

App.  34:    771. 
Dobson   V.   Pearce,   12   N.  Y.   156: 

698. 
Dodge    V.    Colby,    103    N.    Y.    445: 

785,  822. 
Donk  Bros.   Coal   Co.   v.   Aronson, 

102  Mo.  App.  590:     630. 
Dutcher  v.  Dutcher,  39  Wis.  651: 

628. 

E 

Easley  v.  Prewitt,  37  Mo.  361:    833. 
Eaton  V.  North,  25  Wis.  514:    813. 
Eldredge  v.  Putnam,  46  Wis.  205: 

265. 
Emery  v.  Pease,  20  N.  Y.  62:    102. 
Ennis   v.   Case  Mfg.   Co.,   30   Fed. 

487:     773. 

F 
Faesi  v.  Goetz,  15  Wis.  231:    488. 
Farmers'  &  Merchants'  Ins.  Co.  v. 

Moore,  48  Neb.  713:    411. 
Farron  v.  Sherwood,  17  N.  Y.  227: 

59.  "     I 

Felger  v.  Coward,  35  Cal.  650:    35. 
Field  V.  C.  R.  I.  &  P.  Ry.  Co.,  76 

Mo.  614:    6. 
Finley  v.  Quirk,  9  Minn.  194:    665. 
Finney  v.  Guy,  189  U.  S.  335:    791. 
Fisher  v.  Chadwick,  4  Wyo.  379: 

304. 
Flesh  V.  Lindsay,  115  Mo.  1:    337. 
Ford  V.  Douglass,  5  How.  143:    689. 
Fuller  V.  Manhattan  Cons't  Co.,  88 

N.  Y.  S.  1049:    590. 
Fulton  Fire  Ins.  Co,  v.  Baldwin,  37 

N.  Y.   648:     824. 

G 

Gallimore  v.  Ammerman,  39  Ind. 

323:    636. 
Galvin  v.  Mac  Mining  Co.,  14  Mont. 

508:     52. 


TABLE   OP    CASES. 


IX 


[references  are  to  the  pages.] 

Gardner  v.   Clark,   ::i   N.   Y.   399: 

745. 
Garrett    v.   Trotter,    G3   N.   C.  430: 

815. 
Gartner   v.    Corwiue,    57    Ohio    St. 

24C:    69. 
Gates  V.  Boomer,  17  Wis.  470:    2i;5. 
Gay  V.  Orcutt,  169  Mo.  400:    :20l. 
Gertler  v.   Linscott,   26  Minn.   82: 

562. 
Gillespie  v.  Torrance,  25  N.  Y.  306: 

7.35. 
Gillette  v.  Peabody,   19  Col.   App. 

356:    796. 
Goodnight    v.    Goar,    ZO    Ind.    41S: 

235. 
Gould    V.    Cayuga   Nat'l    Bank,    86 

N.  Y.  75:    104. 
Goulet   V.   Asseler,   22   N.    Y.   225: 

94. 
Grand    Island    S.    &    L.    Ass'n    v. 

Moore,  40  Neb.  686:    466. 
Grannis   v.    Hooker,    29   Wis.   65: 

456. 
Gray  v.  Rothschild,  112  N.  Y.  GGS: 

214.     • 
Great  Western   Coal    Co.   v.    C.    & 
G.  W.  Ry.  Co.,  98  Fed.  274:    549. 
Greenberg    v.    Whitcomb    Lumber 

Co.,  90  Wis.  225:     282. 
Greentree  v.  Rosenstock,  61  X.  Y. 

583:    61. 
Griggs  V.   St.   Paul,   9  Minn.   246: 

787. 


H 

Hambly  v.  Trott,  1  Cowper,   371: 

14. 
Hamilton    v.    Mclndoo,    SI    Minn. 

324  :  415. 
Hancock  v.  Blackwell,  139  Mo.  440: 

705. 
Hanson  v.  Lehman,   18  Neb.  564: 

596. 
Harden  v.  A.  &  N.  Ry.  Co.,  4  Neb. 

521:     594. 
Harris  v.  Avery,  5  Kan.  146:    571. 
Harris  v.  Shontz,  l  Mon.  212:    599. 


Hartford   &   Salisbury   Ore   Co.   v. 

Miller,  41  Conn.  112:    1S3. 
Haskell   v.   Haskell,   54   Cal.   262: 

492. 
Hay  don  v.  Anderson,  17   la.   158: 

822. 
Higgins  V.  Graham,  143  Cal.  131: 

584. 
Hiles  V.  Johnson,  67  Wis.  517:    838. 
Hill  V.  Barrett,  14  B.  Monroe,  S3: 

401. 
Hillman  v.  Newington,  57  Cal.  56: 

327. 
Hoffman  v.  Columbia,  70  Mo.  App. 

553:      179. 
Hoffman  v.   Eppers,  41   Wis.  251: 

581. 
Hogan  V.  Walker,  14  How.  29:    345. 
Holden  v.  Great  Western  Elevator 

Co.,  69  Minn.  527:    419. 
Holman   v.    Criswell.    13   Tex.    38: 

10. 
Hopkins    v.    Lane,    87   N.    Y.    501: 

250. 
Horn    V.    Ludington,    28    Wis.    SI: 

384. 
Horse  Doctor's  Case,  19  Hen.  VI, 

49,    5:     23. 
Hudson   V.    Wabash    Ry.    Co.,    101 

Mo.  13:    623. 
Hueston  v.  Miss.  Ry.  &  Boom  Co., 

76  Minn.   251:     523. 
Hunter  v.    Yarborough,   92    N.    G. 

68:     250. 

Huston  V.  Tyler,  140  Mo.  252:    55. 
Hutchinson  v.  Ainsworth,  73  Cal. 

462:    531. 


Imperial  Shale  Brick  Co,  v.  Jewatt, 
169  N.  Y.  143:    533. 


Jaccard  v.  Anderson.  32  Mo.  188: 

397. 
Jasper  v.  Hazen,  2  N.  D.  401:    490. 
J.    R.    v.    M.    P.,    Jenkins    Cent 

Cases,  lOS:    6SG. 


TABLE   OF    CASES. 


[eeferences  aee 

Jeffers  v.  Forbes,  28  Kan.  174:  220. 
Johnson  V.  Miller,  47  Ind.  376:  661. 
Johnson  v.  Oswald,  38  Minn.  550: 

647. 
Johnston  v.  Northwestern  Ins.  Co., 

94  Wis.  117:    671. 
Joint    School    Dis't   v.    Lyford,    27 

Wis.  506:    597. 
Jones    V.    Accident    Ass'n,    92    la. 

652:     427. 
Jones    V.    Ewing,    22    Minn.    157: 

437. 
Jones  V.  Felch,  3  Bos.  63:    253. 
Jones  V.  Foster,  67  Wis.  296:    786. 
Joseph    Dessert    Lumber    Co.     v. 

Wadleigh,   103  Wis.   318:     89. 

K 

Kabrich  v.   State  Ins.  Co.,  48  Mo. 

App.  393:  534. 
Kellogg  V.   Schuerman,    IS   Wash. 

293:    655. 
Kent  V.  Dana,  100  Fed.  56:    199. 
Kerr  v.  Steman,  72  la.  241:    392. 
Keyes  v.  Little  York  Gold  Co.,  53 

Cal.  724:    318. 
King  V.   C.  M.  &  St.   P.  Ry.   Co., 

80  Minn.  83:    511. 
King  V.  Oregon  Short  Line,  G  Ida- 
ho, 306:     375. 
Kingsland    v.    Chrisman,    28    Mo. 

App.  308:    170. 
Kingsley  v.  Oilman,  12  Minn.  515: 

611. 
Kirk   V.   Hamilton,  102   U.   S.   68: 

709. 
Knight  V.  Quarles,  2  Brod.  &  Bing. 

102:    25. 
Koepke    v.    AVinterfield,    116    Wis. 

44:    560. 


Lackland  v.  Garesche,  56  Mo.  267: 

109. 
Lange  v.   Benedict,   73  N.   Y.   12: 

797. 
Langton  v.  Hagerty.  35  Wis.  150: 

652. 


TO   THE   PAGES.] 

Lattin  v.  McCarty,   41  N.  Y.   107: 

536. 
Lawton  v.  Case,  73  Ind.  60:    30. 
Leavenworth  L.  &  H.  Co.  v.  Waller, 

65  Kan.  514:     755. 
Leffingwell  v.  Griffing,  31  Cal.  232: 

606. 
Lent  V.  N.  Y.  &  M.  Ry.  Co.,  130  N. 

Y.  504:    434. 
Lenke   v.    Tredway,    45    Mo.    App. 

507:     316. 
Lewis  V.  Coulter,  10  Ohio  St.  4r)2: 

010. 
Lilly  V.  Tobein,  103  Mo.  477:   269. 
Linton  v.   Unexcelled  Fire  Works 

Co.,  128  N.  Y.  672:    32. 
Little  V.  Reid,  141  Mo.  242:    6S4. 
Loeb  V.  Weis,  64  Ind.  285:    607. 
Lombard  v.  Cowham,  34  Wis.  486: 

720. 
Long  V.  Long,  79  Mo.  644:    616. 
L.  &  N.  Ry.  Co.  V.  Wolfe,  80  Ky. 

82:      369. 
Lucas  V.  Lucas,  69  Mass.  136:    142. 

M 

McAdow  V.  Ross,  53  Mo.  199:    729. 
McArthur  v.  Greenbay  Canal  Co., 

34  Wis.   139:     210. 
McCaughey   v.    Schuette,    117    Cal. 

223:    363. 
McClure    v.    Wilson,    43    N.    Y.    S. 

209:     546. 
Mf  Comas  v.  Covenant  Mutual  Life 

Ins.  Co.,  56  Mo.  573:     193. 
McDermott  v.  Morris  Canal  Co.,  38 

N.  J.  L.  53:     19. 
McElwaine  v.  Wall,  159  Ind.  557: 

409. 
McHenry  v.  Jewett,  90  N.  Y.  58: 

444. 
Mcintosh  v.  Zaring,  150  Ind.  301: 

242. 
McKcnzie  v.  Matthews,  59  Mo.  99: 

807. 
Maguire  v.  Tyler,  47  Mo.  115:    117. 
Manny  &  Co.  v.  French,  23  la.  250: 

5  S3. 


TABLE   OP   CASES. 


XI 


[eefeeences  aee  to  the  pages.] 


Marshall  v.  Thames  Fire  Ins.  Co., 

43  Mo.  586:    592. 
Martin   v.    Scofield,    41   Wi.s.    1G7: 

176. 
Matthews  v.  Matthews,  154  N.  Y. 

288-     678. 
Millard  v.  M.  K.  &  T.  Ry.  Co.,  86 

N.  Y.  441:     525. 
Miller  v.  Fulton,  47  Cal.  146:    715. 
Miller  v.  Hallock,  9  Col.  551:    47. 
Mining  Co.  v.  McFadden,  180  U.  S. 

523:     407. 
Mollyneaux  v,  Wittenberg,  39  Neb, 

547:     774. 
Moore  v.  Granley  Smelting  Co.,  SO 

Mo.  86:    779. 
Moran  v.  Carroll,   35  la.  22:     S3G. 
Mowery  v.  Mast,  9  Neb.  447:    296. 
Moxley  v.  Moxley,  2  Met.  309:    431. 

N 

Natoma  Mining  Co.  v.  Clarkin,  14 

Cal.    545:     491. 
New  ham   v.    Kenton,    79   Mo.   382: 

4G8. 
New  York  Ice  Co.  v.  North  "West- 
ern Ins.  Co.,  23  N.  Y.  357:     123. 
New    York    News     Co.     v.     Nat'l 

Steamship    Co.,    148    N.    Y.    39: 

459. 
Nichols  V.  Michael,  23  N.  Y.  264: 

286. 
Nichols  V.  Nichols,   134  Mo.   187: 

389. 
Nichols   V.   Winfrey,  79   Mo.    544: 

656. 
Northrup   v.   Wills,   65   Kan.    769: 

826. 

O 

O'Brien   v.    Fitzgerald,   143    N.   Y. 

377:     476. 
Ocean  Steamship  Co.  v.  Williams, 

69  Ga.  251:   642. 
Oliphant  v.  Mansfield,  36  Ark.  191: 

317. 
Omaha  &  R.  V.  Ry.  Co.  v.  Wright, 

47  Neb.  886:   368. 


Oscanyan  v.   Arms  Co..   103  U.  S. 

261:    671. 
Owen  V.  Frink,  24  Cal.  171:  239. 


Pastene  v.  Pardini.   135   Cal.  431: 

669. 
Payne  v.   Treadwell,  16  Cal.   220: 

356. 
Peck  V.  Newton,  46  Barb.  173:    162. 
Pehrson   v.    Hewitt,    79    Cal.    598: 

386. 
Pelly  V.  Eowyer,  7  Bush.  513:  24  i. 
Pence  v.  Aughe,  101  Ind.  317:  827. 
People  V.  Booth,  32  N.  Y.  397:  5. 
Pharis  v.  Gere,  31  Hun,  443:  473. 
Phillips  V.  Flynn.  71  Mo.  424 :  272. 
Phillips  V.  Hagart,   113   Cal.   552; 

6C9. 
Pier  V.  Heinrichoffen,  52  Mo.  333- 

453. 
Pillow  V.  Sentelle,  39  Ark.  61:    339. 
P.  C.  C.  &  St.  L.  Ry.  V.  Leighteiser,, 

163  Ind.   247:     379 
Plankinton  v.  Hildebrand,  89  Wi.?. 

209:     542. 
Puget  Sound  Iron  Co.  v.  Worthius- 
ton,  2  Wash.  Ter.  472:    763. 

R 

Ravenel  v.  Ingram,  131  N.  C,  549:* 

205. 
Reformed  Presbyterian  Church  v. 

Nelson,  35  Ohio  St.  038:     342. 
Reilly  v.  Sicilian  Pav.  Co.,  170  N. 

Y.  40:    514. 
Rhine  v.  Montgomery,  50  Tilo.  566: 

752. 
Rice  V.  Rice,  13  Or.  337:    809. 
Richardson  v.  Means,  22  Mo.  495: 

160. 
Richtmeyer  v.  Remsen,   38   N.   Y. 

206:    649. 
Rinard  v.  O.,  K.  C.  &  E.  Ry.  Co., 

164  Mo.  270:    557. 

Ritchie  v.  Hay  ward,  71  Mo.   560: 

740. 
Rizer  v.  Callen,  27  Kan.  339:    247. 


Xll 


TABLE   OF    CASES. 


Rizer  v.  Gillpatrick.  IG  Kan.  5G4: 

313. 
Robbins  v.  Lincoln,  12  Wis.  1:   600. 
Roberts  v.  Johannas,  41  Wis.  61G: 

821. 
Rogers  v.  Duhart,  97  Cal.  500:    85. 
Rogers  v.  Milwaukee,  13  Wis.  610: 

393. 
Rotheram  Alum  Co.,  in  re,  L.  R.  2  > 

Ch.  D.   103:     194. 
Rush  V.  Brown,  101  Mo.  586:    98. 
Ryan  v.  Riddle,  78  Mo.  521:     310. 


School  Dis't  V.  Caldwell,   16  Neb. 

68:    769. 
Schwartz  v.  Oppold,  74  N.  Y.  307: 

662. 
ScoQeld  V.  McDowell,   47  la.  129: 

801. 
Scofield   V.   Whitelegge,    49   N.    Y. 

259:    27. 
Scott  V.  Morse,  54  la.  732:    663. 
Secor   V.    Sturgis,    16    N.    Y.    548: 

500. 


[BEFEBENCE.S    ARE  TO   THE   PAGES.] 

Springer  v.  Kleinsorge,  83  Mo.  152: 

080. 
Stanley  v.  Bircher,  78  Mo.  245:    20. 
State   ex   rel.    v.    Beazley,    57  Mo. 

App.  570:    225. 
State  V.  C.   M.   &   St.   P.   Ry.  Co., 

4  S.   D.  261:     412. 
State  ex  rel.  v.  Dist.  Court,  79  Pac 

547:     777. 
State    V.    Hoffner,    124    Mo.    488: 

147. 
State  ex  rel.  v.  Jennings,  56  Wis. 

120:    150. 
State   ex   rel.   v.    Spencer,   79   Mo. 

314:     829. 
Steenerson  v.  Waterbury,  52  Minn. 

211:    754. 
Stern  v.  Freeman,  4  Met.  309 :    780. 
Stewart  v.  Price,  64  Kan.  191:   206. 
Stillwell  V.  Hurlbert,  18  N.  Y.  374: 

191. 
Stoll  V.  Sheldon,  13  Neb.  207:    185. 
Stroebe  v.  Fehl,  22  Wis.  337:    429. 
Sup'rs  of  Kewaunee  Co.  v.  Decker, 

30  Wis.  624:    71. 


Sevier  v.  Roddie,  51  Mo.  580:    246.  \  Sutton  v.  Casseleggi,  77  Mo.  397 


Sheldon  v.   Middleton,   10   la.   17: 

580. 
Sheridan  v.  Jackson,  72  N.  Y.  170 

355. 
Shields  v.  Barrow,  17  How.   130: 

348. 
Shirk    V.    Andrews,   92    Ind.    509: 

813. 
Simar  v.   Canaday,  53  N.  Y.  298: 

233. 
Simmons    v.    Everson,    124    N.    Y. 

319:    274. 
Simmons  v.  Spencer,  9  Fed.  581: 

290. 
Smith  V.  Dean,  19  Mo.  63:    362. 
Smith  V.  Smith,  67  Kan.  841:    475. 
Snodgrass  v.   Hunt,   15   Ind.   274: 

777. 
South  Bend  Plow  Co.  v.  Cribb,  105 

Wis.  443:     479. 
Sparling  v.   Conway,  75  Mo.   510: 

651. 


284. 
Swarthaut  v.  C.  &  N.  W.  Ry.  Co., 
49  Wis.   628:     231. 


Tayloe  v.  Merchants'  Fire  Ins.  Co., 

9   How.   390:     528. 
Taylor  v.  Blake,  11  Minn.  255:    803. 
Tennant   v.    Pfister,    51    Cal.    511: 

834. 
Thompson  v.  Fargo,  49  N.  Y.  188: 

185. 
Thompson  v.  Fox,  47  N.  Y.  S.  170: 

805. 
Tooker  v.  Arnoux,  76  N.  Y.  397: 

422. 
Trompen   v.   Yates,    66   Neb.    525: 

227. 
Trowbridge  v.  Forepaugh,  14  Minn. 

133:    273. 
Trustees    v.    Kllbourne,    74    Wis. 

452:     830. 


TABLE   OF    CASES. 


xm 


[befeeences  are 


u 


Union  Bank  v.  Mott,  27  N.  Y.  6C: 
308. 


Van  Hoosier  v.  H.  &  St.  J.  Ry.  Co., 

79  Mo.  145:    526. 
Van  Syckel  v.  Dalrymple,  32  N.  J. 

Eq.  233:    687. 
Vassear   v.    Livingston,    13    N.    Y. 

248:     725. 
Von  Glahn  v.  De  Rossett,  76  N.  C. 

292;     820. 
Voorhis   v.  Childs,    17   N.  Y.    354: 

298. 

W 

Wadleigh    v.   Marathon    Bank,    5S 

Wis.   546:     578. 
Waterman  v.  C.  M.  &  St.   P.  Ry. 

Co.,   61  Wis.   464:     188. 
Wayland  v.  Tysen,  45  N.  Y.  2S1: 

618. 
West  V.  American  Exch.  Bank,  tl 

Barb.   175:     603. 
West  V.  Cameron,  39  Kan.  736:  770. 
Western  Ry.   Co.   v.  Nolan,    48   N. 

Y.  513:     166. 
Wheeler  v.  Allen,  51  N,  Y.  37:    169. 


TO   THE   PAGES.] 

Whetstone  v.  Beloit  Straw  Board 
Co.,  76  Wis.  613:    540. 

White  V.  Lyons,  42  Cal.  279:    97. 

White's  Bank  of  Buffalo  v.  Farth- 
ing, 101  N.  Y.  344:     263. 

Whitney  v.  Stark,  8  Cal.  514:    260. 

Wiede  v.  Porter,  22  Minn.  429:    460. 

Wiles  V.  Suydam,  64  N.  Y.  173: 
563. 

Wildman  v.  Wildman,  70  Conn. 
700:     37. 

Wilkins  v.  Stidger,  22  Cal.  232: 
405. 

Williams  v.  Langford,  15  B.  Mon- 
roe, 566:    743. 

Williams  Mower  &  Reaper  Co.  v. 
Smith  32  Wis.  530:    633. 

Williamson  v.  Mich.  Fire  Ins.  Co., 
80  Wis.  393:    197. 

Wilson  V.  C.  &  S.  Ry.  Co.,  51  S.  C. 
79:   657. 

Winslow  V.  Dausman,  18  Wis.  457: 
323 

Woodward  v.  McConnaughey,  106 
Fed.  758:    340. 


Younkin    v.    Milwaukee    Traction 
Co.,  112  Wis.  15:    215. 


CASES  ON  CODE  PLEADING 


CHAPTER  I. 

NATURE  AND  FORMS  OF  ACTIONS. 

PRELIMINARY  NOTE. 

"It  is  beoau_.  rights  exist  and  because  they  are  sometimes 
violated,  tha  medies  are  necessary.  The  object  of  all  remedies 
is  the  protection  of  rights.  Rights  are  protected  by  means  of 
actions  or  suits.  The  term  "remedy"  is  applied  either  to  the  ac- 
tion or  suit  by  means  of  which  a  right  is  protected,  or  to  the 
protection  which  the  action  or  suit  affords.  An  action  may  pro::. 
teet  a  right  in  three  ways,  namely,  by^xtlgJfiBligg  the  violation 
of  it,  by  compelling  a  specific  reparation  of  it  when  it  has-been 
violated,  and  by  compelling  a  compensationjn  money  for  a  vio- 
lation of  it.  The  term  "remedy"  is  strictly  applicable  only  to 
the  second  and  third  of  these  modes  of  protecting  rights;  for 
remedy  literally  means  a  cure, — not  a  prevention.  As  commonly 
used  in  law,  however,  it  means  prevention  as  well  as  cure;  and 
it  will  be  so  used  in  this  paper.  In  equity  the  term  "relief"  is 
commonly  used  instead  of  "remedy";  and  though  relief  is  a 
much  more  technical  term  than  remedy,  it  has  the  advantage  of 
being  equally  applicable  to  all  the  different  modes  of  protect- 
ing  rights. 

"Though  remedies,  like  rights,  are  either  legal  or  equitable, 
yet  the  division  of  remedies  into  legal  and  equitable  is  not  co- 
ordinate with  the  corresponding  division  of  rights ;  for,  though 
the  remedies  afforded  for  the  protection  of  equitable  rights  are 
all  equitable,  the  remedies  afforded  for  the  protection  of  legal 
rights  may  be  either  legal  or  equitable,  or  both. 

"Actions  are  either  in  personam  or  in  rem.  Actions  in  per- 
sonam are  founded  upon  torts,  actual  or  threatened,  or  upon 
breaches  of  personal  obligations,  actual  or  threatened.  They  are 
1  1 


2  NATURE  AND  FORMS  OF  ACTIONS.  [ClIAP.  I. 

called  in  personam  because  they  give  relief  only  against  the  de- 
fendant personally,  i.  e.,  that  is  the  plaintiff  has  no  claim  to  or 
against  any  res.  Actions  in  rem  are  founded  upon  breaches  of 
real  obligations,  or  upon  the  ownership  of    corporeal    things, 
movable  or  immovable.    Actions  founded  upon  breaches  of  real 
obligations  are  called  in  rem,  because    they    give    relief    only 
against  a  res.     Actions  founded  upon  the  ownership  of  cor- 
poreal things  are  called  in  rem,  because  the  only  relief  given 
in  such  actions,  is  the  possession  of  the  things  themselves.  Actions 
in  rem,  as  well  as  actions  in  personam,  are  (except  in  admiralty) 
in  form  against  a  person.     The  person,  however,  against  whom 
an  action  in  personam  is  brought,  is  fixed  and  determined  by 
law;  namely,  the  person  who  incurred    (and  consequently  the 
person  who  broke  or  threatened  to  break)  the  obligation,  or  the 
person  who  committed  or  threatened  to  commit  the  tort,  while 
the  person  against  whom  an  action  in  rem  is  brought  is  any  per- 
son who  happens  to  be  in  the  possession  of  the  res,  and  who  re- 
sists the  plaintiff's  claim.     The  relief  given  in  actions  in  per- 
sonam may  be  either  the  prevention  or  the  specific  reparation  of 
the  tort,  or  the  breach  of  the  obligation,  or  a  compensation  in 
money  for  the  tort  or  for  the  breach  of  obligation.     The  relief 
given  in  an  action  m  rem,  founded  on  the  breach  of  a  real  obli- 
gation, is  properly  the  sale  of  the  res,  and  the  discharge  of  the 
obligation  out  of  the  proceeds  of  the  sale.     The  relief  given  in 
an  action  in  rem,  founded  on  the  ownership  of  a  corporeal  res, 
is  the  recovery  of  the  possession  of  the  res  itself  by  the  plaintiff. 
"Actions  in  rem  founded  upon  ownership  are  anomalous.    As 
every  violation  of  a  right  is  either  a  tort  or  a  breach  of  obliga- 
tion, it  would  naturally  be  supposed  that  every  action  would  be 
founded  upon  a  tort  or  breach  of  an  obligation,  actual  or  threat- 
ened ;  and  if  this  were  so,  the  only  actions  in  rem  would  be  those 
founded  upon  breaches  of  real  obligations.     But  when  a  right 
consists  in  the  ownership  of  a  corporeal  thing,  a  violation  of 
that  right  may  consist  in  depriving  the  owner  of  the  possession 
(and  consequently  of  the  use  and  enjoyment)  of  the  thing.     If 
such  a  tort  had  the  effect  of  destroying  the  owner's  right,  as  the 
physical  destruction  of  the  thing  would,  it    would    not    differ 
from  other  torts  in  respect  to  its  remedy;  for  the  tort  feasor 
would  then  become  the  owner  of  the    thing,    and    its    former 
owner  would  recover  its  value  in  money  as  a  compensation  for 
the  tort.    And  by  our  law,  in  case  of  movable  things,  the  tort 
often    has    the    effect    practically    of    destroying    the    owner's 


Chap.  I.]  peeliminaey  note.  3 

rights,  sometimes  at  his  own  election,  sometimes  at  the  election 
of  the  tort  feasor.  But,  subject  to  that  exception,  the  tort  leaves 
the  right  of  the  owner  untouched,  the  thing  still  belonging  to 
him.  He  can,  indeed,  bring  an  action  for  the  tort,  and  recover 
a  compensation  in  money  for  the  injury  that  he  has  suffered 
down  to  the  time  of  bringing  the  action;  but  the  compensation 
will  not  include  the  value  of  the  thing,  as  the  thing  has  not  in 
legal  contemplation,  been  lost.  If,  therefore  an  action  for  the 
tort  were  the  owner's  only  remedy,  he  must  be  permitted  to 
bring  successive  actions  ad  infinitum,  or  as  long  as  the  thing  con- 
tinued to  exist ;  for  in  that  way  alone  could  he  obtain  full  com- 
pensation for  the  injury  which  he  would  eventually  suffer.  But, 
as  the  law  abhors  a  multiplicity  of  actions,  it  always  enables  the 
owner  to  obtain  complete  justice  by  a  single  action,  or  at  most 
by  two  actions.  Thus,  it  either  enables  him  to  recover  the 
value  of  the  thing  in  an  action  for  the  tort,  by  making  the  tort- 
feasor a  purchaser  of  the  thing  at  such  a  price  as  the  jury  shall 
assess,  or  it  enables  him  to  recover  the  possession  of  the  thing 
itself  in  an  action  in  rem.  He  is,  however,  further  entitled  to 
recover  the  value  of  the  use  and  enjoyment  of  the  thing  during 
the  time  that  the  defendant  has  deprived  him  of  its  possession, 
together  with  a  compensation  for  the  injury  which  the  thing  it- 
self may  have  suffered  while  in  the  defendant 's  possession ;  and 
this,  he  recovers  sometimes  in  the  same  action  in  which  he  re- 
covers the  thing  itself  or  its  value,  and  sometimes  in  a  separate 
action. 

"It  seems,  therefore,  that  an  action  in  rem,  founded  upon 
ownership,  may  be  regarded  as  a  substitute  for  an  infinite  or  an 
indefinite  number  of  actions  founded  upon  the  tort  of  depriving 
the  plaintiff  of  the  possession  of  the  res,  which  is  the  subject  of 
the  action;  and  that  such  an  action  may,  therefore,  be  regarded 
as  in  a  large  sense  founded  upon  the  tort  just  referred  to,  and 
the  recovery  of  the  thing  itself  as  a  specific  reparation  of  that 
tort. 

"Thus  far,  in  speaking  of  actions  and  remedies,  it  has  been 
assumed  that  the  law  of  any  given  country  is  a  unit;  i.  e.,  that 
there  is  but  one  system  of  law  in  force  by  which  rights  are  cre- 
ated and  governed,  and  also  but  one  system  of  administering 
justice.  Whenever,  therefore,  any  given  country  has  several 
systems,  whether  of  substantive  or  remedial  law,  what  has  been 
thus  far  said  is  intended  to  apply  to  them  all  in  the  aggregate, — 
not  to  each  separately.     Thus,  in    English    speaking   countries 


4  NATURE    AND    FORMS    OF    ACTIONS.  [CHxVP.  I. 

there  are  no  less  than  three  systems  of  substantive  law  in  force, 
each  of  which  has  a  remedial  system  of  its  own;  namely,  the 
common  law,  the  canon  law  and  admiralty  law.  There  is  also 
a  fourth  system  of  remedial  law,  namely,  equity.  What  has 
been  said,  therefore,  of  actions  and  remedies  applies  to  all  these 
systems  in  the  aggregate.     *     *     * 

"Common  law  actions,  like  actions  generally,  are  either  in 
personam  or  in  rem.  Common  law  actions  in  personam  are 
founded  upon  the  actual  commission  of  a  common  law  tort  or 
the  actual  breach  of  a  common  law  personal  obligation.  Com- 
mon law  actions  in  rem  are  founded  upon  the  ownership  of  cor- 
poreal things,  movable  or  immovable.  The  relief  given  in  a 
common  law  action  in  personam  is  always  the  same;  namely,  a 
compensation  in  money  for  the  tort  or  the  breach  of  obligation, 
the  amount  of  which  is  ascertained  or  assessed  by  a  jury  under 
the  name  of  damages.  The  relief  given  in  common  law  actions  in 
rem  is  also  always  the  same,  namely,  the  recovery  of  the  res;  but 
then  it  is  to  be  borne  in  mind  that  the  only  action  strictly  in  rem 
that  lies  for  a  movable  res  is  the  very  peculiar  action  of  re- 
plevin ;  and,  when  that  action  cannot  be  brought,  the  only  avail- 
able actions  are  trover,  in  which  the  value  of  the  res  in  money 
can  alone  be  recovered,  and  detinue,  in  which  either  the  res  it- 
self or  its  value  in  money  is  recovered,  at  the  option  of  the  de- 
fendant. Indeed,  as  has  been  already  seen,  the  common  law  has 
not  generally  the  means  of  enabling  a  plaintiff  to  recover  the  pos- 
session of  a  movable  res  against  the  will  of  the  defendant.  In 
replevin  that  object  is  accomplished  by  dispossessing  the  de- 
fendant of  the  res,  and  placing  the  same  in  the  plaintiff's  pos- 
session, at  the  very  commencement  of  the  action ;  but  that  would 
be  obviously  improper  except  when  the  defendant  had  acquired 
the  possession  of  the  res  by  dispossessing  the  plaintiff  of  it.  The 
obstacle  in  the  way  of  recovering  possession  of  the  res  itself  in 
an  action  of  detinue  does  not  arise  from  the  nature  of  the  ac- 
tion, but  from  the  common  law  mode  of  enforcing  a  judgment. 
Detinue  is  in  its  nature  an  action  purely  in  rem;  and  it  only 
ceased  to  be  so  in  practice  because  a  judgment  in  rem  was  found 
to  be  wholly  ineffective ;  and  consequently  a  judgment  was  ren- 
dered in  the  alternative,  namely,  for  the  recovery  of  the  res  it- 
self or  its  value  in  money. 

"If,  now,  we  compare  the  foregoing  common  law  remedies 
with  the  scheme  of  remedies  generally,  as  previously  given,  we 
find  that  the  common  law  does  not  attempt  (as  indeed  it  could 


Chap.  I.]  preliminary  note.  5 

not)  to  prevent  either  the  commission  of  a  tort  or  the  breach  of 
an  obligation;  nor  does  it  attempt  to  give  a  specific  reparation 
for  either,  except  so  far  as  the  recovery  of  the  res  in  an  action 
in  rem  may  be  so  considered;  nor  does  it  give  any  action  what- 
ever for  the  breach  of  a  real  obligation;  nor  does  it  enable  the 
owner  of  movable  things  to  recover  the  possession  of  them  when 
wrongfully  detained  from  him,  except  in  those  cases  in  which 
replevin  will  lie.  *  *  *" — LangdeU,  Survey  of  Equity  Jur- 
isdiction, I  Harvard  Law  Review  111. 


Section  1.    The  Cause  of  Action. 

PEOPLE  V.  BOOTH. 

32  N.  Y.  397.     [1865.] 

This  is  an  action  to  restrain  the  defendants  from  inter- 
meddling with  the  property  pertaining  to  the  fire  department  of 
the  city  of  New  York.  The  plaintiffs  allege  that  said  property 
belongs  to  the  corporation  of  the  city  of  New  York,  and  is  in  the 
possession  and  the  control  of  the  fire  department  of  the  city  and 
its  chief  engineer ;  that  the  appellants  are  wrongfully  seeking  to 
obtain  the  possession,  management  and  control  of  such  property, 
without  the  consent  of  the  corporation,  or  of  said  chief  engineer, 
and  will  succeed  in  doing  so  unless  restrained  by  injunction. 
The  complaint  prays  a  perpetual  injunction,  restraining  the  ap- 
pellants from  meddling  with,  or  receiving  said  property,  and 
the  other  defendants  from  delivering  it  to  them.  The  appellants 
answered,  alleging,  in  substance,  their  appointment  as  commis- 
sioners, under  the  act  of  the  legislature  entitled  "An  act  to  cre- 
ate a  metropolitan  fire  district  of  the  state  of  New  York,  and 
establish  a  fire  department  therein, ' '  passed  March  30,  1865,  and 
their  title  as  such  commissioners  to  take  possession  and  control 
of  the  fire  department,  and  property  mentioned  in  the  complaint.. 
To  this  answer  the  plaintiffs  demurred  for  insufficiency. 

The  plaintiffs  had  judgment  on  the  demurrer  at  the  Special 
and  General  Terms  of  the  Supreme  Court  of  the  first  district; 
and  the  appellants  brought  this  appeal  therefrom. 

Davis,  J.  On  demurrer  to  an  answer  for  insufficiency,  the  de- 
fendants are  at  liberty  to  attack  the  complaint  on  the  ground 


6  NATURE    AND    FORMS    OF    ACTIONS.  [GhAP.  I. 

that  it  does  not  state  facts  siUBBcient  to  constitute  a  cause  of  ac- 
tion.    (8  How.  261;  12  Barb.  573;  Code,  §§144,  148.) 

The  property  described  in  the  complaint  is  alleged  to  belong 
to  the  city  of  New  York,  in  its  corporate  capacity.  The  plaintiffs 
assert  no  title  or  interest  in  the  property  or  right  to  its  pos- 
session or  control.  By  what  right  they  intervene  to  bring  this 
action  is  not  apparent;  and  there  is  no  principle  or  precedent 
upon  which  their  claim  to  do  so  can  be  upheld. 

The  corporation  of  the  city  of  New  York  has  abundant  ca- 
pacity to  maintain  suits  to  defend  its  property  and  possession; 
and  it  is  questionable  whether  any  lack  of  diligence  in  the  exer- 
cise of  this  part  of  its  powers,  has  ever  been  manifested.  But 
however  wanting  in  energy  its  spirit  of  litigation  may  be,  the 
plaintiffs  are  not  called  upon  to  incite  the  city  to  activity,  nor  to 
become  the  voluntary  champion  of  its  wrongs,  whether  real  or 
imaginary.  The  people  of  the  state,  like  all  other  parties  to  ac- 
tions, must  show  an  interest  in  the  subject  matter  of  the  litiga- 
tion, to  entitle  them  to  prosecute  a  suit,  and  demand  relief.  This 
they  have  utterly  failed  to  do  in  this  case,  and,  for  that  reason 
the  complaint  ought  to  have  been  dismissed  by  the  courts  below. 

Judgment  reversed. 


FIELD  V.  C,  R.  I.  «&  P.  R.  R.  Co. 

76  Mo.  614.     [1882.] 

Henry,  J.  This  is  a  suit  to  recover  damages  for  the  destruc- 
tion of  a  growing  crop  of  corn  on  plaintiff's  land,  and,  after  re- 
lating plaintiff's  ownership  of  the  land,  and  that  defendant  had 
for  years  past  been  using  a  strip  of  said  land  for  a  right  of  way 
and  running  its  train  of  ears  over  it,  the  cause  of  action  is  thus 
stated :  ' '  That  defendant  failed  to  keep  its  road  in  such  condi- 
tion as  to  prevent  injury  to  the  plaintiff;  but  negligently  and 
carelessly  failed  to  make,  and  keep  open,  proper  ditches  for  the 
purpose  of  leading  the  water  off  the  plaintiff's  land;  and  in  con- 
sequence of  the  careless  and  negligent  conduct  of  the  defendant, 
as  aforesaid,  the  water  was  dammed  up,  and  caused  to  flow  back, 
and  over  the  land  of  plaintiff,  and  destroy  his  growing  crop,  to 
his  damage,  etc."  The  defendant  objected  to  the  introduction 
of  any  evidence  because  no  cause  of  action  was  stated  in  the  pe- 


Sec.  1.]  FIELD  V.  c,  r.  i.  &  p.  r.  r.  co.  7 

titiou,  but  the  court  overruled  his  objection,  and  on  the  trial  the 
plaintiff  obtained  a  judgment  from  which  the  defendant  appeals. 
In  his  motion  in  arrest,  defendant  also  made  the  objection  that 
no  cause  of  action  was  stated  in  the  petition. 

The  complaint  in  the  petition,  and  the  only  cause  of  action  al- 
leged, is  "that  defendant  failed  to  keep  its  road  in  such  condi- 
tion as  to  prevent  injury  to  plaintiff,  but  negligently  failed  to 
make,  and  keep  open,  proper  ditches  for  the  purpose  of  leading 
the  water  off  of  plaintiff's  land."  Placing  the  most  favorable 
construction  upon  the  petition,  which  is  to  take  it  as  alleging 
"that  defendant  failed  to  keep  its  road  in  such  condition  as  to 
prevent  injury  to  plaintiff's  land,  by  negligently  and  carelessly 
failing  to  make,  and  keep  open,  proper  ditches  to  lead  the  water 
oft'  plaintiff's  land,"  it  does  not  state  a  cause  of  action.  It  is  not 
alleged  that  the  railroad-bed  was  raised  above  the  surface  of 
plaintiff's  land  through  which  it  passed,  and  if  on  a  level  with 
that  surface  it  could  not  have  obstructed  the  flow  of  surface 
water.  If,  on  the  other  hand,  it  made  an  embankment  where  it 
ran  through  his  land,  the  statute  only  requires  ditches  sufficient 
to  carry  off  the  surface  water,  along  the  sides  of  the  embank- 
ment; and  we  know  of  no  statute  or  principle  of  the  common  or 
civil  law,  which,  on  the  facts  stated  in  this  petition,  requires  the 
railroad  company  to  open  ditches  for  the  purpose  of  draining 
the  land  of  an  adjoining  proprietor.  There  is  no  allegation  that 
the  company  constructed  its  road  so  as  to  obstruct  the  flow  of 
surface  water  and  throw  it  back  upon  the  plaintiff's  land,  and 
failed  to  make  and  keep  open  the  ditches  required  by  the  stat- 
ute, along  the  side  of  its  road. 

No  facts  are  alleged  in  the  petition  which  show  any  legal  ob- 
ligation upon  the  defendant  to  do  what  the  plaintiff  complains 
of  its  omission  to  do,  and,  when  a  suit  is  for  a  breach  of  duty, 
the  facts  out  of  which  it  arises  must  be  pleaded. 

If  the  nature  of  the  complaint  can  be  conjectured  from  the 
plaintiff's  petition,  it  is  of  an  obstruction  of  the  flow  of  surface 
water.  It  is  an  insufficient  statement  of  a  cause  of  action  in 
that  view. 

On  the  trial,  plaintiff  w^as  permitted,  over  defendant's  ob- 
jection, to  prove  the  obstruction  of  a  running  stream,  and  yet  no 
one  would  construe  the  petition  as  stating  such  a  cause  of  action. 
The  plaintiff  must  state  the  facts  which  constitute  his  cause  of 
action.    He  cannot  state  one  and  prove  another,  nor,  if  he  states 


8  NATURE  AND  FORMS  OF  ACTIONS,  [ChaP.  I. 

none,  can  he  supply  the  defects  in  his  petition  by  evidence  at  the 
/  trial. 

All  concur  in  reversing  the  judgment  and    remanding    the 
cause. 


BOWEN  V.  EMERSON. 

3  Or.  452.     [1869.] 

Upton,  J.  The  objection  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action  is  not  waived  by 
failing  to  demur.     (Code,  sec.  70.) 

The  complaint  states  that  "on  or  about  the  eighteenth  day  of 
February,  1868,  plaintiffs  sold  and  delivered  to  the  defendant 
4,000  pounds  of  flour,  and  that  the  same  was  worth  $212."  It 
does  not  show  that  the  defendant  undertook  or  became  obligated 
to  pay  for  the  flour  within  a  designated  time,  or  within  a  rea- 
sonable time,  or  when  requested;  nor  that  the  time  of  payment 
had  arrived  before  the  commencement  of  the  action.  For  aught 
that  appears  from  the  facts  stated,  the  property  may  have  been 
sold  on  credit,  the  time  of  which  has  not  yet  expired ;  or  it  may 
have  been  sold  and  delivered  to  the  defendant  upon  the  request 
and  credit  of  another,  with  a  full  understanding  that  defendant 
was  not  to  pay  for  it.  It  is  assumed  in  argument  that  com- 
plaints like  the  one  under  consideration  are  sustained,  by  adju- 
dications in  other  states,  under  codes  similar  to  ours,  and  par- 
ticular reference  is  made  to  the  state  of  New  York.  A  careful 
examination  of  the  cases  cited  in  support  of  this  proposition  will 
show  that  it  is  not  correct.  The  decisions  in  some  of  the  cases 
are  based  on  special  statutory  provisions  not  contained  in  our 
code.  For  an  instance  the  code  of  New  York,  section  162,  pro- 
vides, that  "  in  an  action  or  defense  founded  upon  an  instrument 

-  for  the  payment  of  money  only,  it  shall  be  sufficient  for  a  party 
to  give  a  copy  of  the  instrument,  and  to  state  that  there  is  due 

'*  him  thereon  from  the  adverse  party  a  specified  sum,  which  he 
claims."  Precedents  are  found  following  this  statute  which  do 
not  state  facts  only,  but  which  state  conclusions.  The  same  is 
true  of  other  special  provisions  of  statute.  Cases  predicated 
upon  special  provisions  not  contained  in  our  code  furnish  but 
little  assistance  in  this  investigation.    Fortunately,  our  code  con- 


Sec.  1.]  BOWEN  v.  emerson.  9 

tains  but  few  special  provisions  on  the  subject  of  pleadings  that 
amount  to  a  departure  from  the  general  rule,  that  the  complaint 
shall  contain  a  plain  and  concise  statement  of  the  facts  consti- 
tuting the  cause  of  action.  Attempts  to  simplify  by  making 
special  provision  for  particular  cases  or  classes  of  cases  tend  to 
complicate  the  system  and  to  confuse,  rather  than  simplify,  the 
practice.  They  are  generally  a  means  of  annoyance  to  the  prac- 
titioner, and  of  delay  and  expense  to  parties.  Every  experi- 
enced pleader  knows  that  there  is  nothing  more  difficult  to  the 
young  practitioner,  or  that  taxes  more  the  memory  of  those  who 
have  experience,  than  to  be  compelled  to  conform  to  special 
statutes  in  pleading.  Some  of  the  cases  cited  purport  to  be  based 
upon  the  general  rule.  The  most  prominent  among  them  is  that 
of  Allen  v.  Patterson,  7  N.  Y.  476.  The  opinion  in  that  case,  it 
must  be  conceded,  is  quite  out  of  the  general  current  of  author- 
ity, and  it  is  difficult  to  reconcile  it  with  the  numerous  decisions 
in  the  same  state  that  announce  and  reiterate  the  rule  that  the 
code  requires  facts  to  be  stated,  and  not  the  conclusions  that  re- 
sult from  the  facts.  The  opinion  assumes,  without  argument  and 
without  citing  any  authority  relating  to  the  construction  of  any 
modem  code,  that  the  statement  that  the  defendant  is  indebted 
to  the  plaintiff  in  a  certain  sum  is  the  statement  of  a  fact,  and 
with  equal  brevity  it  reverses  the  long  settled  rule  that  "if  the 
meaning  of  the  words  be  equivocal,  they  shall  be  construed  most 
strongly  against  the  party  pleading  them. ' '  The  statement  that 
the  defendant  is  indebted  to  the  plaintiff  is  substantially  the 
conclusion  to  be  found  by  the  Jury  at  the  end  of  the  investiga- 
tion.    (Lienan  v.  Lincoln,  2  Duer,  670 ;  Drake  v.  Cockraft,  4  E. 

D.  Smith,  34;  Seely  v.  EngeU,  17  Barb.,  530;  Levy  v.  Bend,  1 

E.  D.  Smith,  169.) 

It  is  not  necessary  in  this  case  to  determine  to  what  extent  the 
case  of  Allen  v.  Patterson  should  be  considered  law,  because  the 
complaint  in  this  case  does  not  show,  by  stating  either  facts  or 
conclusions,  that  the  defendant  is  indebted.  The  case  of  Far- 
ron  V.  Sherwood,  3  Smith  229,  states  the  following  rule,  which 
seems  entirely  consistent  with  the  enactments  of  the  code :  "It 
was  not  necessary  to  state  in  terms  a  promise  to  pay ;  it  was  suf- 
ficent  to  state  facts  showing  the  duty  from  which  the  law  im- 
plies a  promise."  A  fault  with  the  complaint  in  this  case  is, 
that  it  neither  states  a  promise  to  do  any  certain  act  at  any  speci- 
fied time,  nor  states  facts  from  which  a  duty  to  do  so  necessarily 


10  NATURE    AND    FORMS    OF    ACTIONS.  [ChaP.  I. 

arises,  or  from  v/hich  a  promise  is  necessarily  inferred.  It  is  not 
probable  that  any  method  of  pleading,  in  actions  for  money  due 
upon  contract,  will  ever  be  discovered,  that  is  more  simple  and 
easy  in  practice,  or  better  calculated  to  apprise  the  court  and  the 
parties  of  the  ground  and  nature  of  the  action,  or  more  likely  to 
leave  a  clear  and  concise  record  of  what  has  been  done  than  that 
which  is  now  prescribed  in  the  code.  Notwithstanding  this  con- 
ceded truth,  we  sometimes  meet  with  pleadings  in  this  class  of 
actions  that  neither  conform  to  the  common  law  nor  to  the  re- 
quirements of  the  code.  In  actions  for  money  due  on  contract, 
the  common  law  required  a  concise  statement  of  the  facts,  and 
in  some  particulars  the  employment  of  technical  language;  the 
code  requires  a  plain  and  concise  statement  of  the  facts.  In 
other  words,  the  common  law  required  the  facts  to  be  stated  con- 
cisely, and  sometimes  in  technical  language;  the  code  requires 
the  facts  to  be  stated  concisely,  and  in  plain  or  ordinary  lang- 
uage. In  this  class  of  actions  the  pleader  is  required  to  state 
the  facts  that  show  that  a  contract  existed  between  the  parties, 
and  that  it  has  been  broken,  and  in  what  particular,  and  the 
amount  of  damages  the  breach  has  caused.  Facts  only  must  be 
stated,  as  contradistinguished  from  the  law,  from  argument, 
from  conclusions,  and  from  the  evidence  required  to  prove  the 
facts.     (Coryell  v.  Cain,  16  Cal.  571.) 

The  complaint  does  not  in  this  case  state  facts  sufficient  to 
constitute  a  cause  of  action. 

Judgment  should  be  reversed. 


HOLMAN   V.    CRISWELL. 

13  Tex.  38.   [1854.] 

Hemphill,  Ch.  J.  This  is  a  suit  for  specific  performance. 
The  plaintiff  alleges  that  Jerome  B.  Alexander,  in  his  lifetime, 
on  the  30th  December,  1840,  executed  to  one  Horatio  Griffith 
his  bond  for  title  to  220  acres  of  land ;  that  said  Horatio  Grif- 
fith, on  or  about  the  18th  of  February,  1847,  assigned  his  inter- 
est in  said  bond  and  the  land  therein  to  be  conveyed  to  one 
Michael  B.  Griffith,  who  afterwards,  in  1849,  assigned  said  bond 
to  petitioner. 


Sec.  l.J  HOLMAN    V.    CRISWELL.  11 

A  copy  of  the  bond  and  assignments  is  made  a  part  of  the 
petition. 

The  condition  of  the  bond  is,  that  whereas  Horatio  Griffith 
purchased  of  Jerome  B.  Alexander  two  hundred  and  twenty 
acres  of  land  for  two  hundred  and  twenty-five  dollars,  the  re- 
ceipt of  which  is  acknowledged,  the  land  to  be  selected  out  of 
either  corner  of  a  half  league  of  land  lying  on  the  waters  of 
Buckner's  creek,  belonging  to  the  heirs  of  Benjamin  Green, 
being  part  of  the  said  Green's  headright,  the  said  Jerome  B. 
Alexander  binds  himself,  his  heirs,  etc.,  to  make  the  selection 
to  the  best  advantage,  as  he  would  for  himself,  and  have  the 
same  legally  surveyed,  and  make  or  cause  to  be  made  a  good 
and  bona  fide  title  or  deed,  embodying  the  field  notes  therein,  to 
the  said  Horatio  Griffith,  his  heirs,  etc.,  the  said  Griffith  holding 
himself  responsible  to  the  said  Alexander  for  the  surveying  and 
recording  fees,  etc. 

The  petition  further  alleges  that  the  only  part  of  Green's 
league  of  land  to  which  Alexander  had  any  title  was  two  hun- 
dred and  twenty-five  acres,  which  are  set  out  by  metes  and 
bounds ;  that  Alexander  departed  this  life  in  1842 ;  that  his  wife 
and  son,  Jerome,  a  minor,  are  his  only  heirs,  and  that  his  wife 
subsequently  intermarried  with  one  John  T.  Holman,  who,  to- 
gether with  the  said  wife  and  the  minor,  Jerome,  are  made 
parties  defendant.  The  petition  then  alleges  that  by  virtue  of 
the  execution  of  the  bond  by  the  said  Jerome  B.  Alexander,  and 
the  various  assignments  and  transfers  by  the  parties  therein  de- 
scribed, the  petitioner  is  entitled  to  a  judgment  and  decree  of 
the  said  Court,  divesting  the  defendants  of  all  title  and  interest 
in  two  hundred  and  twenty  out  of  the  two  hundred  and  twenty- 
five  acres  of  land,  and  vesting  the  same  in  the  petitioner.  The 
other  matters  set  forth  in  the  petition  need  not  be  noticed. 

The  defendants  filed  a  general  demurrer  and  other  pleas,  to 
which  reference  is  unnecessary,  as  the  only  point  which  will  be 
examined  is  that  which  arises  on  the  assigned  error  in  overruling 
the  demurrer. 

The  grounds  assumed  by  counsel  in  their  elaborate  argument 
in  support  of  this  assignment  are: 

1st.  That  there  is  no  averment  of  breach  of  the  conditions  of 
the  bond. 

2d.  That  the  plaintiff  has  no  interest  in  the  land,  the  trans- 
fer to  him  (set  forth  in  the  petition)  being  without  seal. 


12  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

To  sustain  the  first  ground  several  authorities  have  been  cited 
from  Common  Law  writers  and  Reports,  to  the  effect  that  in 
actions  on  penal  bonds  breaches  must  not  only  be  assigned,  but 
stated  with  such  particularity  and  certainty  that  the  defendant 
may  know  what  to  defend.  This  action,  however,  if  brought  in 
Courts  where  there  is  a  distinction  between  Law  and  Equity, 
would  have  been  prosecuted  in  a  Court  of  Equity.  But  there 
is  no  material  difference  in  substance  in  the  certainty  with 
which  the  grounds  of  complaint  must  be  set  forth,  whether  an 
action  be  instituted  in  the  one  forum  or  the  other.  In  equity 
the  bill  must  state,  not  only  the  right,  title,  or  claim  of  the 
plaintiff,  with  accuracy  and  clearness,  but  also  the  injury  or 
grievance  of  which  he  complains;  or,  in  other  words,  in  cases 
such  as  the  one  before  the  Court,  the  breach  or  non-performance 
of  his  obligations  on  the  bond. 

Our  own  statute,  however,  furnishes  the  authoritative  rule 
as  to  the  matters  which  must  be  set  forth  in  the  petition,  and 
this  requires  a  full  and  clear  statement  of  the  cause  of  action 
with  such  other  allegations,  pertinent  to  the  cause,  as  may  be 
deemed  necessary  to  sustain  the  suit.     (Hart.  Dig.  Art.  671.) 

(Referring  to  the  authorities  to  ascertain  the  definition  and 
scope  of  the  phrase  "cause  of  action,"  we  find  that  the  breach 
of  contract  or  covenant  sued  upon  is  one  of  its  essential  ele- 
ments. Chitty,  in  treating  of  the  statement  of  the  cause  of 
action  in  assumpsit,  says  that  the  breach  of  the  contract,  being 
obviously  an  essential  part  of  the  cause  of  action,  must,  in  all 
cases,  be  stated  in  the  declaration  (Vol.  1st,  p.  322),  and  its 
omission  cannot  be  cured  even  by  verdict.  (Id.,  p.  337.)  This 
is  said  in  treating  of  the  statement  of  the  cause  of  action  in  as- 
sumpsit, but  the  rule  is  the  same  in  actions  of  debt,  covenant, 
etc.) 

The  rule  is  founded  in  good  sense,  and  has  as  much  applica- 
tion in  our  system  of  pleading  as  in  any  other.  Unquestionably, 
in  the  nature  of  things,  there  can  be  no  cause  of  action  where 
no  injury  has  been  done.  The  invocation  of  the  remedial  aid  of 
a  Court  necessarily  pre-supposes  the  infliction  of  some  wrong 
for  which  redress  is  sought,  and  this  wrong  must,  as  a  matter  of 
course,  be  stated  in  all  Courts  where  the  formality  of  pleading 
is  required;  and  if  it  be  not  averred,  no  such  case  is  made  as 
entitles  the  complainant  to  the  interposition  of  the  Court. 

The  only  difficulty  in  holding  that  the  averment  of  breach  is 


Sec.  1.]  HOLMAN   V.    CRISWELL.  13 

in  all  cases  an  essential  portion  of  the  statement  of  the  cause  of 
action  consists  in  this,  that  in  some  cases  it  is  not  incumbent  on 
the  plaintiff  to  prove  the  breach  or  non-performance  of  the  con- 
tract or  covenant.  Its  execution  being  established  and  its  ma- 
turity passed,  its  breach  will  be  presumed. 

There  is  no  doubt  that,  as  a  general  rule,  the  plaintiff  cannot 
be  compelled  to  assert  more  facts  than  on  a  general  denial  he 
would  be  bound  to  prove  in  order  to  sustain  his  case.  We  have 
repeatedly  held  that  he  cannot  prove  what  he  has  not  alleged,  and, 
as  a  general  rule,  he  ought  not  to  be  compelled  to  allege  what 
he  is  not  bound  to  prove.  But  there  is  another  general  rule  of 
like  cogency  and  pervasive  influence  in  pleading,  and  which  is 
specially  applicable  to  the  question  at  issue,  and  that  is,  the 
plaintiff'  must  allege  such  facts  in  his  petition  as  would,  were 
they  admitted  to  be  true,  entitle  him  to  judgment;  and  this 
certainly  he  could  not  demand  unless  he  complained  that  some 
wrong  or  injury  had  been  done  him,  or  that  some  right  had  been 
withheld. 

For  instance,  in  this  case  it  may  be  true  that  Alexander  en- 
tered into  the  obligations  which  had  been  averred.  The  de- 
murrer admits  that  such  is  the  fact.  But  this  fact  alone  would 
not  authorize  a  decree  for  specific  execution. 

The  bond  may  have  been  fulfilled.  The  obligor  may  not  have 
refused,  expressly  or  impliedly,  to  perform  its  stipulations. 
If  so,  the  plaintiff  has  no  ground  of  complaint,  or  to  apply  to 
the  Court  for  relief. 

He  has  not  stated  that  the  obligations  have  not  been  per- 
formed, and  if  on  his  averment  merely  that  such  obligations 
were  made,  judgment  being  given  in  his  favor,  the  absurdity 
might  be  presented  of  a  judgment  being  for  him,  when  in  fact 
he  had  no  ground  to  complain  against  the  defendant,  and  this, 
too,  when  he  had  not  stated  that  he  had  any  such  ground,  and 
when  the  defendant  may  fully  have  discharged  his  obligations. 

It  is  true  that  the  plaintiff  has  alleged  that  he  is  entitled  to 
judgment.  But  this  is  a  legal  conclusion  drawn  by  the  pleader 
from  the  facts  stated.  It  is  not  a  fact,  and  consequently  is  not 
admitted  by  the  demurrer,  whose  office  is  to  admit  facts  only, 
and  those  which  are  well  pleaded. 

The  circumstance  that  the  plaintiff  would  not,  on  the  trial,  by 
the  rules  of  evidence,  be  required  to  prove  that  the  conditions  of 
the  bond  had  not  been  fulfilled,  that  such  would  be  the  prima 


14  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.   I. 

facie  presumption  on  the  introduction  of  the  bond,  does  not 
relieve  him  from  the  necessity  of  making  out  such  a  case  by  his 
allegations  as  would,  if  their  truth  were  admitted,  be  followed 
by  judgment  in  his  favor.  Where  suit  is  brought  on  a  note  of 
hand,  the  execution  of  the  note,  unless  denied  on  oath,  need  not 
be  proved,  nor  is  the  fact  of  non-payment  to  be  established  by 
proof;  but  this  certainly  would  not  exempt  the  plaintiff  from 
stating  that  such  note  had  been  made,  and  that  it  had  not  been 
paid,  or  other  equivalent  averments  of  its  execution  and  sub- 
sisting obligation;  and  without  such  averments  the  petition 
would  be  insufficient,  as  not  showing  that  any  wrong  had  been 
done,  or  that  the  plaintiff  had,  in  fact,  any  cause  why  he  should 
bring  his  action.  The  rules  of  evidence  may  be  changed  or 
modified.  Parties  may  not  in  special  cases  be  required  to  prove 
the  facts  which  constitute  their  cases.  But  this  does  not  relieve 
them,  if  they  plead  at  all,  from  the  necessity  of  stating  such  a 
case  as  would  on  its  face  be  entitled  to  relief  from  the  Court. 

We  are  of  opinion  that  on  the  first  grounds,  viz. :  the  want  of 
assignment  of  breach,  the  demurrer  should  be  sustained. 

The  other  ground  of  demurrer,  viz. :  that  the  plaintiff  has  no 
interest  in  the  land,  the  transfer  to  him  being  without  seal,  is 
not  tenable. 

Reversed  and    remanded. 


HAMBLY  ET  AL.,  ASSIGNEES  OF  MOON  v.  TROTT, 
ADMINISTRATOR. 

1  Cowper,  371*     [1776.] 

In  trover  against  an  administrator  cum  testamento  annexo, 
the  declaration  laid  the  conversion  by,  the  testator  in  his  life- 
time. 

Plea,  that  the  testator  was  not  guilty.  Verdict  for  the  plain- 
tiff. 

Mr.  Kirby  had  moved  in  arrest  of  judgment  upon  the  ground 
of  this  being  a  personal  tort,  which  dies  with  the  person;  upon 
the  authority  of  Collins  v.  Fennerell,  and  had  a  rule  to  show 
cause. 


♦Argument  of  counsel  omitted. 


Sec.  1.]  HAMBLEY    V.    TROTT.  •  15 

Lord  Mansfield:  If  this  case  depends  upon  tlie  rule,  actio 
X>ersonalis  moritur  cum  persona,  at  present  only  a  dictum  has 
been  cited  in  support  of  the  argument.  Trover  is  in  form  a 
tort,  but  in  substance  an  action  to  try  property. 

Mr.  Kerby:  The  executor  is  answerable  for  all  contracts  of 
the  testator,  but  not  for  torts. 

Lord  Mansfield  :  The  fundamental  point  to  be  considered  in 
this  case  is,  whether  if  a  man  gets  the  property  of  another  into 
his  hands  it  may  be  recovered  against  his  executors  in  the  form 
of  an  action  of  trover,  where  there  is  an  action  against  the  execu- 
tors in  another  form.  It  is  merely  a  distinction  whether  the 
relief  shall  be  in  this  form  or  that.  Suppose  the  testator  had 
sold  the  sheep,  etc.,  in  question :  In  that  case,  an  action  for 
money  had  and  received  would  lie.  Suppose  the  testator  had 
left  them  in  specie  to  the  executors,  the  conversion  must  have 
been  laid  against  the  executors.  There  is  no  difficulty  as  to  the 
administration  of  the  assets,  because  they  are  not  the  testator's 
own  property.  Suppose  the  testator  had  consumed  them,  and 
had  eaten  the  sheep,  what  action  would  have  lain  then?  Is  the 
executor  to  get  off  altogether?  I  shall  be  very  sorry  to  decide 
that  trover  will  not  lie,  if  there  is  no  other  remedy  for  the 
right. 

Aston,  Justice :  Suppose  the  executor  had  had  a  counter  de- 
.mand  against  the  plaintiff,  he  could  not  have  set  it  off  in  trover; 
but  in  an  action  for  money  had  and  received,  he  might.  If 
these  things  had  been  left  by  the  testator  in  specie,  the  conver- 
sion must  have  been  laid  to  be  by  the  executor.  There  seems  to 
be  but  little  difference  between  actions  in  trover  and  actions 
for  money  had  and  received.  As  at  present  advised,  I  incline 
to  think  trover  maintainable  in  this  case. 

Ashhurst,  Justice :  The  maxim  does  not  hold  as  an  universal 
proposition,  because  assumpsit  lies.  As  to  the  case  of  Collins  v. 
Fennerell,  all  the  court  considered  it  as  unargued,  and  given  up 
rather  prematurely  by  Mr.  Henley. 

Lord  Mansfield  :  The  criterion  I  go  upon  is  this :  Can  jus- 
tice possibly  be  done  in  any  other  form  of  action?  Trover  is 
merely  a  substitute  of  the  old  action  of  detinue.  (2  Keb.,  502; 
Ventr.,  30;  Sir  T.  Raym.,  95.)  The  court  ordered  it  to  stand 
over. 

Upon  a  second  argument  this  day,  Mr.  Dunning  cited  Cro. 
Car.,  540;  1  Sid.,  88. 


16  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

Lord  Mansfield  :  Many  difficulties  arise  worth  consideration. 
An  action  of  trover  is  not  now  an  action  ex  maleficio,  though  it 
is  so  in  form,  but  it  is  founded  in  property.  If  the  goods  of  one 
person  come  to  another,  the  person  who  converts  them  is  answer- 
able. In  substance,  trover  is  an  action  of  property.  If  a  man 
receives  the  property  of  another,  his  fortune  ought  to  answer  it. 
Suppose  he  dies,  are  the  assets  to  be  in  no  respect  liable?  It 
will  require  a  good  deal  of  consideration  before  we  decide  that 
there  is  no  remedy. 

Aston,  Justice:  The  rule  is,  quod  oritur  ex  delicto,  nan 
ex  contractu,  shall  not  charge  an  executor.  (2  Bac.  Abr.,  444- 
445,  tit.  Executors  and  administrators,  5  Bac.  Abr.,  280,  tit. 
Trover.)  Where  goods  come  to  the  hands  of  the  executor  in 
specie,  trover  will  lie ;  where  in  value,  an  action  for  money  had 
and  received.  But  the  difficulty  with  me  is,  that  here  it  does 
not  appear  whether  the  goods  came  to  the  hands  of  the  de- 
fendant in  specie  or  in  value. 

Cur.  advisare  vult. 

Afterwards,  on  Monday,  Feb.  12th,  in  this  term,  Lord 
Mansfield  delivered  the  unanimous  opinion  of  the  court  as  fol- 
lows: 

This  was  an  action  of  trover  against  an  administrator,  with 
the  will  annexed.  The  trover  and  conversion  were  both  charged 
to  have  been  committed  by  the  testator  in  his  lifetime.  The 
plea  pleaded  was,  that  the  testator  was  not  guilty.  A  verdict 
was  found  for  the  plaintiffs,  and  a  motion  has  been  made  in 
arrest  of  judgment,  because  this  is  a  tort,  for  which  an  executor 
or  an  administrator  is  not  liable  to  answer. 

The  maxim,  actio  personalis  moritur  cum  persona,  upon 
which  the  objection  is  founded,  not  being  generally  true,  and 
much  less  universally  so,  leaves  the  law  undefined  as  to  the 
kind  of  personal  actions  which  die  with  the  person,  or  survive 
against  the  executor. 

An  action  of  trover  being  in  form  a  fiction,  and  in  substance 
founded  on  property,  for  the  equitable  purpose  of  recovering 
the  value  of  the  plaintiff's  specific  property,  used  and  enjoyed 
by  the  defendant.  If  no  other  action  could  be  brought  against 
the  executor,  it  seems  unjust  and  inconvenient  that  the  testa- 
tor's assets  should  not  be  liable  for  the  value  of  what  belonged 
to  another  man,  which  the  testator  had  reaped  the  benefit  of. 

We,  therefore,  thought  the  matter  well  deserved  consider- 


Sec.  1.]  HAMBLEY    V.    TROTT.  17 

ation.  We  have  carefully  looked  into  all  the  cases  on  the  sub- 
ject. To  state  and  go  through  them  all  would  be  tedious,  and 
tend  rather  to  confound  than  elucidate.  Upon  the  whole,  I 
think  these  conclusions  may  be  drawn  from  them: 

First,  as  to  actions  which  survive  against  an  executor,  or  die 
with  the  person,  on  account  of  the  cause  of  action.  Secondly, 
as  to  actions  which  survive  against  an  executor,  or  die  with  the 
person,  on  account  of  the  form  of  action. 

As  to  the  first :  where  the  cause  of  action  is  money  due,  or  a 
contract  to  be  performed,  gain  or  acquisition  of  the  testator, 
by  the  work  and  labor,  or  property  of  another,  or  a  promise  of 
the  testator,  express  or  implied;  where  these  are  the  causes 
of  action  the  action  survives  against  the  executor.  But  where 
the  cause  of  action  is  a  tort,  or  arises  ex  delicto  (as  is  said  in 
Sir  T.  Raym.,  57,  Hole  v.  Blanford),  supposed  to  be  by  force 
and  against  the  King's  peace,  there  the  action  dies;  as  battery, 
false  imprisonment,  trespass,  words,  nuisance,  obstructing 
lights,  diverting  a  water  course,  escape  against  the  sheriff,  and 
many  other  cases  of  the  like  kind. 

Secondly,  as  to  those  which  survive  or  die,  in  respect  of  the 

form  of  action.     In  some  actions  the    defendant    could    have 

waged  his  law ;  and  therefore  no  action  in  that  form  lies  against 

an  executor.     But  now  other  actions  are  substituted  in  their 

room    upon    the    very    same    cause,    which  do  survive  and  lie 

against  the  executor.    No  action  where  in  form  the  declaration 

must  be  qiuare  vi  et  armis,  et  contra  pacem,  or  where  the  plea 

must  be,  as  in  this  case,  that  the  testator  was  not  guilty,  can 

lie  against  the  executor.    Upon  the  face  of  the  record,  the  cause 

•of  action  arises  ex  delicto;  and  all  private  criminal  injuries  or 

wrongs,  as  well  as  all  public  crimes  are  buried  with  the  offender. 

But  in  most,  if  not  all,  the  cases  where  trover  lies  against  the 

testator,  another  action  might  be  brought  against  the  executor 

which  would  answer  the  purpose.    An  action  on  the  custom  of 

the  realm  against  a  common  carrier  is  for  a  tort  and  supposed 

<»rime.   The  plea  is  not  guilty ;  therefore  it  will  not  lie  against  an 

executor.    But  assumpsit,  which  is  another  action  for  the  same 

cause,  will  He.     So  if  a  man  take  a  horse  from  another,  and 

bring  him  back  again,  an  action  of  trespass  will  not  lie  against 

his  executor,  though  it  would  against  him;  but  an  action  for 

the  use  and  hire  of  the  horse  will  lie  against  the  executor. 

There  is  a  case  in  Sir  Thomas  Raymond,  71,  which  sets  this 

2 


18  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

matter  in  a  clear  light.  There,  in  an  action  upon  the  case,  the 
plaintiff  declared  "that  he  was  possessed  of  a  cow,  which  he 
delivered  to  the  testator,  Eichard  Bailey,  in  his  lifetime,  to  keep 
the  same  for  the  use  of  him,  the  plaintiff,  which  cow  the  said 
Eichard  afterwards  sold,  and  did  convert  and  dispose  of  the 
money  to  his  own  use,  and  that  neither  the  said  Eichard  in  his 
life,  nor  the  defendant  after  his  death,  ever  paid  the  money." 
Upon  this  state  of  the  case,  no  one  can  doubt  but  that  the 
executor  was  liable  for  the  value.  But  the  special  injury 
charged  obliged  him  to  plead  that  the  testator  was  not  guilty. 
The  jury  found  him  guilty.  It  was  moved  in  arrest  of  judg- 
ment, because  this  is  a  tort  for  which  the  executor  is  not  liable 
to  answer,  but  moritur  cum  persona.  For  the  plaintiff  it  was 
insisted  that,  though  the  executor  is  not  chargeable  for  a  mis- 
feasance, yet  for  a  non-feasance  he  is;  as  for  non-payment  of 
money  levied  on  a  fieri  facias,  and  cited  Cro.  Car.,  539 ;  9.  Co.  50, 
where  this  very  difference  was  agreed;  for  non-feasance  shall 
never  be  vi  et  armis  nor  contra  pacem.  But,  notwithstanding 
this,  the  court  held  "it  was  a  tort,  and  that  the  executor  ought 
not  to  be  chargeable."  Sir  Thomas  Eaymond  adds,  "vide 
Saville,  40,  a  difference  taken."  That  was  the  case  of  Sir 
Henry  Sherrington,  who  had  cut  down  trees  upon  the  Queen's 
land  and  converted  them  to  his  own  use  in  his  lifetime.  Upon 
an  information  against  his  widow,  after  his  decease,  Manwood, 
Justice,  said :  "In  every  case  where  any  price  or  value  is  set 
upon  the  thing  in  which  the  offence  is  committed,  if  the  defend- 
ant dies,  his  executor  shall  be  chargeable;  but  where  the  action 
is  for  damages  only,  in  satisfaction  of  the  injury  done,  there 
his  executor  shall  not  be  liable."  These  are  the  words  Sir 
Thomas  Eaymond  refers  to. 

Here,  therefore,  is  a  fundamental  distinction.  If  it  is  a  sort 
of  injury  by  which  the  offender  acquires  no  gain  to  himself  at 
the  expense  of  the  sufferer,  as  beating  or  imprisoning  a  man, 
etc.,  there  the  person  injured  has  only  a  reparation  for  the 
delictum  in  damages  to  be  assessed  by  a  jury.  But  where,  be- 
.  sides  the  crime,  property  is  acquired  which  benefits  the  testator, 
there  an  action  for  the  value  of  the  property  shall  survive 
against  the  executor.  As,  for  instance,  the  executor  shall  not 
be  chargeable  for  the  injury  done  by  his  testator  in  cutting 
down  another  man's  trees,  but  for  the  benefit  arising  to  his 
^iestator  for  the  value  or  sale  of  the  trees  he  shall. 


Sec.  1.]  HAMBLET    V.    TROTT.  19 

So  far  as  the  tort  itself  goes,  an  executor  shall  not  be  liable, 
and  therefore  it  is  that  all  public  and  all  private  crimes  die 
with  the  offender,  and  the  executor  is  not  chargeable;  but  so 
far  as  the  act  of  the  offender  is  beneficial,  his  assets  ought  to 
be  answerable,  and  his  executor  therefore  shall  be  charged. 

There  are  express  authorities  that  trover  and  conversion  does 
not  lie  against  an  executor.  I  mean,  where  the  conversion  is  by 
the  testator.  Sir  William  Jones,  173-4,  Palmer,  330.  There  is 
no  saying  that  it  does. 

The  form  of  the  plea  is  decisive,  viz.,  that  the  testator  was  not 
guilty ;  and  the  issue  is  to  try  the  guilt  of  the  testator.  And  no 
mischief  is  done ;  for  so  far  as  the  cause  of  action  does  not  arise 
ex  delicto,  or  ex  maleficio  of  the  testator,  but  is  founded  in  a 
duty,  which  the  testator  owes  the  plaintiff,  upon  principles  of 
civil  obligation  another  form  of  action  may  be  brought,  as  an 
action  for  money  had  and  received.  Therefore,  we  are  all  of 
the  opinion  that  the  judgment  must  be  arrested. 

Per  Cur.  Judgment  arrested. 


McDERMOTT  v.  MORRIS  CANAL  CO. 

38  N.  J.  L.,  53.     [1875.] 

The  opinion  of  the  court  was  delivered  by 

Knapp,  J. :  To  the  declaration  filed  in  this  cause,  the  defend- 
ants interposed  a  general  demurrer.  The  first  and  second 
counts  of  the  declaration  are  in  tort,  and  set  forth  a  cause  of 
action  in  form  and  substance  essentially  the  same.  They 
charge  that  the  plaintiff's,  being  the  owners  of  a  mill  near  to  a 
certain  stream  in  the  County  of  Warren,  were  entitled  to  have, 
and  for  a  long  time  had  a  portion  of  the  water  from  said 
stream  flow  through  a  certain  flood-gate  or  sluice-way,  to  the 
plaintiff's  mill,  for  running  it,  and  the  defendants  unlawfully 
pulled  down  a  stop-gate  placed  in  the  stream  for  the  purpose 
of  turning  the  water  to  the  mill,  and  by  removing  the  gate  di- 
verted the  water  from  the  mill  and  so  diminished  its  flow  that 
the  plaintiffs  could  not  run  their  mill,  and  were  thereby  damni- 
fied. Counts  in  a  declaration  nearly  identical  with  these  were 
approved  in  the  Court  of  Queen's  Bench  in  Beaston  v.  Weate, 
5  Ellis.  &  Black.,  986.    So  far  as  the  first  and  second  counts  of 


20  NATURE    AJSTD    FORMS    OF    ACTIONS.  [ChAP,  I. 

the  declaration  are  concerned  there  is  no  objection;  the  fault 
is  in  joining  with  them  the  third  count.  The  third  count  sub- 
stantially charges  that  defendants  had  agreed  with  the  plain- 
tiffs' grantors,  their  heirs  and  assigns,  that  they,  the  defend- 
ants, should  keep  a  dam  or  a  stop  gate  across  their  canal  for  the 
purpose  of  turning  the  water  from  the  canal  through  the  gate 
and  sluice-way  to  plaintiff's  mill.  And  that  in  pursuance  of 
said  agreement  the  defendants  had  constructed  a  dam  and  stop- 
gate  accordingly,  and  afterwards  had  wrongfully  pulled  down 
the  dam,  by  means  of  which  the  water  had  been  drawn  away 
from  plaintiff's  mill.  This  count  presents  a  cause  of  action,  to 
maintain  which  a  contract  of  the  defendants  must  be  referred 
to  as  creating  the  right,  for  the  violation  of  which  plaintiffs 
complain.  In  such  cases,  the  rule  is  that  the  action  must  be  on 
the  contract,  and  not  on  the  tort.  Cabell  v.  Vaughan,  1  Saund. 
R.  (2d  ed.),  291,  note  c;  Masters  v.  Stratton,  7  Hill,  101;  Wil- 
ber  V.  Brown,  3  Denio,  356. 

In  Masters  v.  Stratton,  Chief  Justice  Nelson,  in  delivering 
the  opinion  of  the  court,  says:  The  general  result  of  all  the 
decisions  is  well  stated  in  the  note  to  Cabell  v,  Vaughan,  and 
is  in  substance  this :  ' '  Where  an  action  is  maintainable  for  the 
tort  merely,  without  reference  to  any  contract  made  between 
the  parties,  no  objection  can  be  raised  on  the  ground  that  the 
plaintiffs  should  have  declared  upon  the  contract;  but  when 
the  action  is  not  maintainable  without  referring  to  a  contract 
between  the  parties,  and  laying  a  previous  ground  for  it  by 
such  contract,  then  the  plaintiff  must  proceed  upon  the  contract 
and  a  special  action  on  the  case  will  not  lie." 

For  this  manifest  misjoinder  of  causes  of  action  there  should 
be  a  judgment  for  demurrants. 


STANLEY  V.  BIRCHER. 

78  Mo.  245.     [1883.] 

Martin,  C.  :  This  was  an  action  for  injuries  to  the  person 
of  plaintiff,  alleged  to  have  been  caused  by  the  negligence  of 
the  defendant's  testator,  who  died  on  the  fourteenth  day  of 
June,  1879.  This  action  was  brought  on  the  17th  day  of  Sep- 
tember following. 


Sec.  1.]  STANLEY   V,   BIRCHER.  21 

It  is  alleged  in  the  petition  that  on  the  10th  day  of  June,  1878, 
Rudolph  Bireher,  the  testator,  was  owner  and  proprietor  of  the 
Laclede-Bircher  Hotel  in  St.  Louis;  that  at  the  last  mentioned 
date  the  plaintiff,  for  a  valuable  consideration,  became  a  guest 
in  the  hotel;  that  for  the  said  consideration  it  became  the  duty 
of  said  Bireher  and  he  agreed  to  furnish  safe  accommodations 
for  the  necessary  and  reasonable  wants  of  the  plaintiff;  that 
he  did  not  perform  the  duty  or  keep  the  agreement  aforesaid  in 
this,  that  in  and  adjoining  one  of  the  halls  in  the  third  story  of 
the  hotel  the  said  Bireher  maintained  an  elevator  shaft  or  pit, 
reaching  from  the  basement  to  the  third  story ;  that  the  door  to 
it  was  unskillfully  constructed  and  dangerous  to  guests  and 
was  negligently  left  open  by  said  Bireher  and  his  servants ;  that 
at  the  date  last  aforesaid  the  plaintiff,  having  occasion  to  re- 
tire to  the  water  closet,  went  into  the  hallway  where  said  shaft 
w^as  located,  and  without  any  fault  or  negligence  of  hers,  fell 
through  the  open  doorway  into  said  shaft  and  was  precipitated 
to  the  bottom,  a  distance  of  about  fifty  feet,  whereby  she  sus- 
tained great  and  serious  bodily  injuries,  permanently  laming 
her,  for  which  she  asked  damages  in  the  sum  of  $25,000. 

The  defendant,  as  executor  of  said  Bireher,  demurred  on  the 
ground  that  the  cause  of  action  did  not  survive  as  against  the 
administrator  or  executor  of  the  estate,  and  that  the  petition  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  The 
demurrer  w^as  sustained  and  final  judgment  entered  for  defend- 
ant in  the  Circuit  Court,  which  was  affirmed  in  the  Court  of  Ap- 
peals.    (9  Mo.  App.  99.) 

I  am  unable  to  perceive  how  the  plaintiff  can  maintain  her 
action  in  the  face  of  the  statutes  in  force  at  the  time  of  the  in- 
jury. In  the  general  statutes  of  1865,  section  29,  under  the 
head  of  administrators,  reads  as  follows:  "For  all  wrongs 
done  to  the  property,  rights  or  interests  of  another,  for  which 
an  action  might  be  maintained  against  the  wrongdoer,  such 
action  may  be  brought  by  the  person  injured,  or,  after  his  death, 
by  his  executor  or  administrator  against  such  wrongdoer;  and, 
after  his  death,  against  his  executor  or  administrator,  in  the 
same  manner  and  with  like  effect  in  all  respects  as  actions 
founded  on  contracts."  Gen.  St.  1865,  491,  section  29.  If 
there  was  no  limitation  or  exception  to  this  section,  the  plain- 
tiff's remedy  would  be  secured  to  her.  But  the  next  section 
operates  as  an  express  limitation  or  exception  to  it,  and  leaves 


22  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

the  plaintiff  at  common  law.  It  reads  as  follows:  "The  pre- 
ceding section  shall  not  extend  to  actions  for  slander,  libel,  as- 
sault and  battery  or  false  imprisonment,  nor  to  actions  on  the 
case  for  injuries  to  the  person  of  the  plaintiff  or  to  the  person 
of  the  testator  or  intestate  of  any  executor  or  administrator." 
Gen.  Stats.  1865,  491,  section  30.  At  common  law  this  action 
did  not  survive  as  against  the  executor  or  administrator.  And 
we  thus  see  that  it  is  expressly  excepted  from  the  statute  which 
assumes  to  change  the  common  law  in  this  respect. 

But,  it  is  claimed  by  counsel  for  plaintiff  that  the  action  is 
for  the  breach  of  a  contract,  and  that  it  is  not  an  action  on  the 
case  for  injuries  to  the  person.  The  allusions  in  the  petition  to 
the  formal  contract  between  the  plaintiff  and  the  proprietor  of 
the  hotel,  whereby  the  plaintiff  became  a  guest  in  the  hotel,  can- 
not change  the  true  character  of  the  action.  In  setting  forth 
an  action  of  trespass  on  the  case,  the  pleader  often  finds  it 
proper,  although  not  absolutely  necessary,  to  mention  matters 
of  contract  connected  with  the  tort,  by  way  of  inducement  and 
explanation.  In  this  case  the  relation  of  host  and  guest  which 
originated  in  contract,  explains  how  the  defendant's  testator 
came  to  owe  the  plaintiff  a  duty.  That  duty,  however,  the  law 
imposes.  It  is  a  public  duty  which  is  not  defined  by  the  con- 
tract. Neither  can  the  proprietor  relieve  himself  from  the  duty 
by  contract.  The  action,  in  truth,  is  for  a  violation  of  the  duty 
which  the  law  imposes,  independent  of  contract.  Neither  the 
damages  nor  the  scope  of  the  action  can  be  limited  by  the  con- 
tract. 

None  of  the  cases  cited  from  our  reports  will  sustain  the 
plaintiff's  right  of  action  in  this  case.  In  James  v.  Christy, 
18  Mo.  164,  a  father  sued  a  carrier  for  loss  of  services  of  a 
minor  child,  who  had  met  his  death  as  a  passenger  through 
the  negligence  of  the  defendant  as  a  carrier.  It  was  held  that 
the  father  had  a  right  of  property  in  the  services  of  his  minor 
child,  and  that  the  defendant  was  liable  to  the  father  for  any 
negligence  which  resulted  in  depriving  him  of  that  right.  This 
right  of  action  never  belonged  to  the  son,  and  it  could  not,  there- 
fore, be  said  to  die  with  his  person.  It  was  regarded  as  an 
action  for  a  wrong  done  to  the  "property"  rights  of  the  father, 
within  the  provisions  of  the  first  section  hereinbefore  cited,  and 
not  as  an  action  for  "injuries  to  the  person  of  the  plaintiff  or 
the  person  of  the  testator  or  intestate  of  any  executor  or  admin- 


Sec.  1.]  STANLEY   V.   BIRCHER.  23 

istrator,"  within  the  meaning  of  the  second  section  cited  by  us. 
In  that  case  the  carrier  lived  and  the  father  died  before  judg- 
ment. It  was  held  that  damages  should  be  assessed  for  loss  of 
the  child's  services  up  to  the  date  of  the  father's  death,  and 
that  all  damages  for  loss  of  the  society  or  comforts  afforded  by 
the  child  died  with  the  father. 

The  judgment  in  this  case  should  be  affirmed.     The  other 
commissioners  concur. 


HORSE    DOCTOR'S  CASE. 
r.  B.  19  Hen.  VI,  49,  5.     [U40.] 

Writ  of  trespass  on  the  case  against  one  R.,  a  horse  doctor, 
for  this,  that  the  defendant  at  London  undertook  to  cure  his 
horse  of  a  certain  disease,  and  that  he  so  negligently  and  im- 
properly applied  medicines,  etc.,  that  the  horse  (died). 

PoRTiNGTON  (for  Deft.)  :  We  say  to  this  that  at  Oxford,  in 
the  County  of  Oxford,  we  undertook  to  cure  the  horse  of  such  a 
disease  as  you  say,  which  we  sufficiently  did,  without  this,  that 
we  undertook  to  cure  your  horse  at  London.     Ready. 

]\L\.rkham;  (for  Plff.)  :  This  is  no  plea,  because  I  suppose 
by  my  writ  that  by  his  negligence  he  had  killed  my  horse;  then 
this  is  the  cause  of  my  grievance  and  of  my  action,  which  ought 
to  be  traversed  by  him,  and  not  the  undertaking.  Wherefore, 
etc.  As  in  case  a  carpenter  undertakes  well  and  sufficiently 
to  build  a  house  for  me,  which  he  does  not  do.  In  this  case  I 
shall  have  no  action  against  him,  and  this  proves  that  the  mis- 
feasance is  the  cause  of  action,  which,  according  to  my  under- 
standing, ought  to  be  traversed. 

Newton  (J.)  :  It  seems  that  the  plea  is  good,  because  it 
could  be  that  he  undertook  to  cure  your  horse  at  Oxford,  as  is 
said,  and  that  he  did  so,  and  that  afterwards  at  London  your 
horse  had  the  disease  again,  and  that  he  of  his  good  will  applied 
his  medicines,  and  afterwards  your  horse  died;  so  for  what  he 
did  of  his  good  will  you  shall  have  no  action.  Therefore  in  our 
case  it  is  not  necessary  to  traverse  this  any  more  than  in  this 
case:  My  horse  is  sick  and  I  go  to  a  horse  doctor  to  get  his 
advice,  and  he  says  that  one  of  his  horses  had  such  a  disease 
and  that  he  gave  his  horse  certain  medicines  and  therefore  he 


24  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

will  do  the  same  (for  mine)  and  does  so,  and  afterwards  the 
horse  dies.  Shall  the  plaintiff  have  any  action?  I  say  not. 
Then  it  follows  from  this  that  he  shall  not  have  any  action  in 
our  case  unless  he  undertook,  etc.,  which  ought  to  be  traversed, 
and  this  has  been  done  well  enough. 

Paston  (J.)  to  Markham:  You  have  not  shown  that  he  is  a 
common  horse  doctor  to  cure  such  horse.  So,  although  he  killed 
your  horse  with  his  medicines,  you  shall  not  have  an  action 
against  him  without  an  undertaking,  which  proves  that  the 
traverse  is  well  taken  on  the  undertaking. 

FoRTESQUE  (J.)  :  Markham  has  said  that  if  a  carpenter  un- 
dertakes to  build  a  house  for  me  and  does  not  do  it,  that  I  shall 
not  have  an  action,  and  that  this  proves  that  the  undertaking 
is  not  the  cause  of  action  according  to  his  understanding,  and 
hence  the  traverse  should  not  be  taken  on  it.  I  say  that  in  any 
case  where  he  undertakes  to  do  a  thing  and  does  not  do  it,  from 
his  non-feasance  I  shall  have  a  good  action,*  and  the  traverse 
should  be  on  the  undertaking,  which  proves  that  the  undertak- 
ing is  the  cause  of  action,  from  which  it  follows  that  the 
traverse  shall  be  taken  on  the  undertaking.  As,  suppose  I  have 
a  ruinous  house  and  a  carpenter  undertakes  to  repair  the  house 
sufficiently  before  a  certain  day  and  does  not  do  it  at  all,  from 
which  my  house  goes  to  rack,  then  for  this  I  shall  have  an  action 
against  him,  and  the  traverse  can  well  be  taken  on  the  under- 
taking. So  here,  although  the  horse  died  from  his  negligence, 
still  the  action  shall  be  brought  because  he  undertook  to  cure 
the  horse  and  did  not  do  it,  just  the  same  as  where  the  house 
went  to  rack  from  his  neglect.  Therefore  it  seems  that  the 
plea  is  sufficient. 

AscouGH  (J.)  :  It  seems  that  undertaking  is  the  cause  which 
gives  the  action,  just  as  a  warranty  does  in  this  case.  Suppose 
that  I  sell  you  woolen  cloaks  with  a  warranty  that  they  are 
good  and  merchantable,  and  afterwards  you  find  the  cloaks  full 
of  moths.  Then  it  is  the  warranty  which  is  the  cause  of  your 
action  as  much  as  the  damage  to  the  woolen,  and  the  traverse 
can  well  be  taken  on  the  warranty.  So  in  this  case  the  under- 
taking is  the  cause  of  action,  and  the  issue  can  well  be  taken 
on  it.  As  in  an  action  on  the  Statute  of  Labeureurs,  the  em- 
ployment can  as  well  be  traversed  as  the  leaving. 


*Apparently  not  supported  by  authority  at  that  time. 


Sec.  1.]  HORSE  doctor's  case.  '25 

Markam:  The  writ  is  that  he  negligently  and  improperly- 
applied  medicines;  so  it  seems  that  he  killed  him  by  these  con- 
trary medicines,  and  hence  the  death  of  the  horse  is  the  cause  of 
action,  which  ought  to  be  traversed  to  my  mind. 

Newton  (J.)  :  Negligently  applied,  etc.,  is  bad.  If  I  have 
a  disease  in  my  hand  and  he  applies  medicines  to  my  heel,  from 
which  negligence  my  hand  is  maimed,  still  I  shall  have  no  action 
unless  he  undertook  to  cure  me. 


KNIGHT,  ADMINISTRATOR,  v.  QUARLES. 

2  Brod.  &  Bing.  102.    [1820.] 

Assumpsit.  The  declaration  stated  that  before  the  time  of 
making  the  promise  therein  contained,  and  in  the  lifetime  of 
the  deceased,  the  deceased  had  contracted  with  one  Savory  for 
the  purchase  of  certain  premises  at  Thetford,  which  Savory 
assumed  to  have  sufficient  power  and  title  to  sell  and  convey  to 
the  deceased;  and,  thereupon,  in  the  lifetime  of  the  deceased 
(in  consideration  of  the  premises,  and  that  deceased  at  the 
special  instance  and  request  of  the  defendant,  had  retained 
and  employed  the  defendant  as  his  attorney  and  solicitor,  to 
ascertain  and  investigate  the  title  of  Savory  to  the  said  prem- 
ises, and  to  cause  and  procure  the  same,  and  a  good  title  there- 
to, to  be  duly  and  effectually  conveyed  by  Savory  to  the  in- 
testate as  purchaser,  for  certain  fees  to  be  therefor  paid  by 
the  intestate  to  the  defendant),  the  defendant  undertook  and 
promised  the  deceased,  in  his  lifetime,  to  perform  and  fulfill  his 
duty  in  the  premises.  Breach,  that  although  it  was  the  duty  of 
the  defendant,  by  virtue  of  his  retainer,  to  investigate  carefully 
the  title  of  Savory  to  the  premises,  and  to  take  due  and  proper 
care  that  a  bad  title  to  the  same  should  not  be  accepted  by  the 
deceased,  yet  the  defendant,  not  regarding  his  duty  in  that  be- 
half, but  contriving  and  fraudulently  intending,  etc.,  did  not 
nor  would  carefully  investigate  the  title  of  Savory  in  the  prem- 
ises, or  take  due  or  proper  care  that  a  bad  or  insufficient  title 
was  not  accepted  and  received  by  intestate,  but,  on  the  con- 
trary, the  defendant  wholly  neglected  and  refused  to  do  so: 


26  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

and  in  the  lifetime  of  the  deceased  the  defendant,  in  violation 
of  his  promise  and  undertaking,  caused  and  procured,  etc.,  the 
deceased,  without  his  knowledge  or  consent,  to  accept  and  re- 
ceive, and  the  said  deceased  in  his  lifetime  did  accordingly 
accept  and  receive  from  Savory  a  bad,  defective,  and  insuf- 
ficient title  to  the  said  premises;  and  thereupon  such  title  was 
conveyed  by  Savory  to  the  deceased  in  his  lifetime,  and  the 
deceased  paid  Savory  as  the  consideration  money  in  that  behalf 
£2,000,  by  means  of  which  the  deceased,  in  his  lifetime  and  until 
his  death,  held  the  premises  on  a  bad  and  insufficient  title,  and 
was  in  his  lifetime  wholly  unable  to  sell  or  dispose  of  the  same. 
The  count  then  alleged  special  damages  to  the  deceased  and  his 
personal  estate.  The  declaration  contained  other  counts,  vary- 
ing the  statement  of  the  contract,  in  one  of  which  counts  the  de- 
fendant was  charged  generally  and  not  as  an  attorney.  To 
these  counts  the  money  counts  were  added. 

Demurrer  and  joinder. 

The  court  stopped  Frere  Serjt,  who  was  to  have  argued  for 
the  plaintiff,  expressing  an  unanimous  opinion  that  there  was 
no  ground  for  the  demurrer,  an  express  promise  being  alleged, 
a  breach  of  it  in  the  lifetime  of  the  intestate,  and  an  injury  to 
his  personal  property,  the  truth  of  which  allegations  was  ad- 
mitted by  the  demurrer;  that  it  made  no  difference  in  this  case 
whether  the  promise  was  expressed  or  implied,  the  whole  trans- 
action resting  on  a  contract ;  that  though,  perhaps,  the  intestate 
might  have  brought  case  or  assumpsit  at  his  election,  assumpsit 
being  the  only  remedy  for  the  administrator,  it  was  very  neces- 
sary the  action  be  maintained  or  the  defendant  might  escape 
out  of  the  consequences  of  his  misconduct,  and  the  intestate's 
estate  suffer  an  irreparable  injury.  It  was  further  observed 
that  if  a  man  contracted  for  a  safe  conveyance  by  a  coach,  and 
sustained  an  injury  by  a  fall,  by  which  his  means  of  improving 
his  personal  property  were  destroyed,  and  that  property  in  con- 
sequence injured — though  it  was  clear  he,  in  his  lifetime,  might 
at  his  election  sue  the  coach  proprietor  in  contract  or  in  tort, 
it  could  not  be  doubted  that  his  executor  might  sue  in  assump- 
sit for  the  consequences  of  the  coach  proprietor's  breach  of  con- 
tract. That  it  could  not  be  pretended  that  the  contract  of  the 
defendant  in  this  case  was  a  contract  running  with  the  land; 
but  if  it  were  so,  an  action  would  lie  by  the  administrator  for 
a  breach  and  damage  incurred  in  the  time  of  the  testator;  and 


Sec.  1.]  KNIGHT   V,    QUARLES.  27 

as  to  the  alleged  omission  of  certain  averments  in  the  declara- 
tion, respecting  the  defendant's  profession,  at  all  events  the  ad- 
mission of  an  express  promise,  implied  by  the  demurrer,  ren- 
dered any  such  allegation  unnecessary. 

Judgment  for  the  plaintiff. 


SCOFIELD  V.  WHITELEGGE. 
49  N.  Y.  259.    [1872.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior 
Court  in  the  city  of  New  York,  affirming  a  judgment  in  favor 
of  the  defendant  entered  upon  the  decision  of  the  court  at  cir- 
cuit dismissing  plaintiff's  complaint,  and  also  affirming  an 
order  denying  a  motion  for  a  new  trial.  The  action  was  for 
the  recovery  of  personal  property.  The  complaint  alleged 
that  the  defendant  had  become  possessed  of  and  wrongfully 
detained  from  plaintiff  a  piano  of  the  value  of  $400,  and  de- 
manded a  return  thereof,  etc.  The  answer  denied  the  possession 
of  any  property  belonging  to  the  plaintiff,  and  denied  the 
wrongful  detention  and  plaintiff's  ownership  of  the  piano. 
Upon  the  trial,  before  the  case  was  opened,  defendant  moved 
for  a  dismissal  of  the  complaint  upon  the  ground  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action,  which 
motion  was  granted. 

FoLGER,  J. :  The  complaint  in  this  action  does  not  in  terms 
show  any  right  or  title  in  the  plaintiff  upon  which  the  former 
action  of  replevin  would  lie.  That  action  could  be  maintained 
only  by  one  who  had  the  general  or  a  special  property  in  the 
thing  taken  or  detained.  That  property  must  have  been  averred 
in  the  declaration,  or  it  would  not  have  sufficed  the  plaintiff's 
purpose.  (Pattison  v.  Adams,  7  Hill,  126;  see  also  Bond  v. 
Mitchell,  3  Barb.,  304 ;  Vandenburgh  v.  Van  Valkenburgh,  8  id., 
217.)  The  chapter  of  the  Code  of  Procedure  of  "The  Claim 
and  Delivery  of  Personal  Property,"  was  intended  to  supply 
the  provisional  relief  which  was  theretofore  obtained  in  the 
action  of  replevin.  (See  Commissioner's  Report,  p.  169.) 
There  was  no  intention  to  change  the  requisites  to  maintain  the 
action.     There  was  no  change  made.     Indeed  the  code,  as  re- 


28  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I, 

ported,  expressly  required  an  affidavit  from  the  plaintiff,  where 
a  delivery  was  to  be  made,  that  he  was  the  owner  of  the  prop- 
erty, or  lawfully  entitled  to  the  possession  thereof  by  virtue  of 
a  special  property  therein.  (Commissioner's  Report,  p.  170, 
§182,  sub.  1.)     And  so  it  now  is.     (Code,  §207.) 

Nor  is  it  less  necessary  now  than  then,  for  the  plaintiff  to 
aver  the  facts  which  constitute  his  cause  of  action.  He  must 
allege  the  facts,  and  not  the  evidence ;  he  must  allege  facts,  and 
not  conclusions  of  law.  The  plaintiff  here  alleges  that  the  de- 
fendant wrongfully  detains  from  him  the  chattel  in  question. 
If,  indeed,  that  be  true,  then  it  must  be  that  the  plaintiff'  has  a 
general  or  special  property  in  the  chattel,  and  the  right  of  im- 
mediate possession.  But  unless  he  has  that  general  or  special 
property  and  right  of  immediate  possession,  it  cannot  be  true 
that  it  is  wrongfully  detained  from  him.  The  last,  the  wrong- 
ful detention,  grows  from  the  first,  the  property  and  the  right 
of  possession.  The  last  is  the  conclusion.  The  first  is  the  fact, 
upon  which  that  conclusion  is  based.  It  is  the  fact  which  in 
pleading  must  be  alleged. 

Where  facts  are  stated  in  a  pleading  which  militate  with 
a  conclusion  of  law  therein  stated,  the  statement  of  facts  will 
prevail.  (Jones  v.  Phoenix  Bank,  8  N.  Y.,  228;  Robinson  v. 
Stewart,  10  id.,  189.)  And  is  not  the  statement  of  a  conclusion 
of  law,  without  a  fact  averred  to  sustain  it  an  immaterial 
statement  ? 

The  plaintiff  says  that  the  defendant  wrongfully  detains 
from  him  the  piano.  The  fact  involved  in  that  statement  is  that 
.he  detains  it.  Granted,  then,  that  he  detains  it.  Why  is  it 
wrongful?  Because  the  plaintiff  is  the  owner  by  general  or 
special  right  of  property,  and  entitled  to  the  immediate  pos- 
session. But  these  are  the  facts  which  are  to  be  shown.  They 
have  not  been  averred.     How,  then,  can  they  be  shown? 

The  plaintiff  claims,  however,  that  the  averment  in  the  an- 
swer denying  detention,  and  denying  ownership  in  the  plain- 
tiff, puts  in  issue  those  facts,  and  that  the  defect  in  the  com- 
plaint is  cured  by  that  averment.  He  cites  Bate  v.  Graham 
(11  N.  Y.,  237).  But  there  the  allegation  in  the  answer  was 
the  affirmation  of  the  very  fact  which  it  was  objected,  the  com- 
plaint should  have  averred.  There  the  omission  from  the  com- 
plaint was  of  an  allegation  that  the  defendant  maintained  that 
a  certain  assignment  of  an  insolvent  debtor  was  not  fraudulent. 


Sec.  1.]  SCOFIELD    V.    WHITELEGGB.  29 

The  answer  of  the  defendant  made  the  very  averment  which 
■was  omitted  from  the  complaint,  and  the  omission  of  which  was 
the  ground  of  the  defendant's  objection  to  the  complaint.  The 
court  well  held  that  the  complaint  might  have  been  amended; 
for  both  parities  at  the  trial  were  maintaining  the  same  fact. 
Here,  however,  the  parties  do  not  seek  to  maintain  the  same 
fact;  and  that  which  the  answer  avers  is  the  direct  opposite  of 
that  which  the  plaintiff  must  establish  to  recover.  Would  the 
plaintiff  take  the  averment  of  the  answer  into  his  complaint  as 
a  part  of  its  allegation?  Then  he  would  alleged  that  he  is  not 
the  owner  of  the  property,  and  that  the  defendant  has  not  de- 
tained it  from  him.  And  then  his  complaint  would  show  him 
without  cause  of  action.     (See  Pelton  v.  Ward,  3  Caines,  73.) 

The  same  considerations  are  applicable  to  the  lack  of  the 
averment  of  a  demand  and  refusal;  if  the  plaintiff's  case  is  to 
depend  upon  a  wrongful  detention,  without  a  wrongful  taking 
in  the  first  instance. 

The  case  of  Levin  v.  Russell  (42  N.  Y.,  251)  is  cited  by  the 
appellant.  There  are  two  facts  wliich  make  it  inapplicable  here. 
There  was  in  it  no  motion  to  dismiss  the  complamt  for  its  in- 
sufficiency; and  proof  was  made  at  the  trial  without  objection 
of  facts  making  a  cause  of  action.  Again:  The  complaint  did 
allege  that  the  property  was  that  of  the  plaintiff.  This  does 
not  appear  in  the  report  of  the  case  in  42  New  York ;  and  from 
the  statement  there,  one  would  think  that  the  complaint  was 
without  an  allegation  of  the  plaintiff's  ownership.  On  refer- 
ring to  the  printed  case,  as  it  is  found  in  the  series  of  bound 
volumes  of  cases  in  this  court  in  the  State  Library,  the  averment 
reads  thus:  "The  following  goods  and  chattels  of  the  plaintiff." 
This  is  in  exact  accordance  with  the  precedent  for  a  declaration 
in  replevin.     (Pattison  v.  Adams,  supra.) 

The  judgment  should  be  affirmed  with  costs  to  the  respond- 
ent. 

All  concur. 


30  NATURE    AND    FORMS    OP    ACTIONS.  [ChAP.  I. 

LAWTON  V.   CASE. 
73  Ind.,  60.     [1880.] 

Elliott,  J. :  The  appellees  instituted  this  action  to  foreclose 
a  mechanic's  lien,  and  succeeded  in  obtaining  judgment. 

The  complaint  is  in  two  paragraphs,  to  each  of  which  demur- 
rers were  overruled. 

The  first  paragraph  was  clearly  bad,  because  it  does  not  al- 
lege that  the  appellant  was  the  owner  or  claimant  of  the  real 
estate  upon  which  the  appellees  seek  to  enforce  a  lien.  The 
materials,  for  which  the  lien  was  filed,  were  furnished  to  a  con- 
tractor and  not  to  the  appellant.  The  only  inference  that  can 
reasonably  be  drawn  from  the  allegations  of  the  pleading  is 
that  Hill,  the  contractor,  and  not  the  appellant,  was  the  owner 
of  the  real  estate.  The  appellees  could  secure  a  cause  of  action 
against  the  appellant  only  by  showing  that  he  was  the  owner  of, 
or  claimant  asserting  some  interest  in  the  real  estate,  for  they 
could  have  had  no  claim  upon  him,  except  on  the  ground  that 
he  owned,  or  claimed  to  be  the  owner  of,  the  property  for  which 
the  materials  were  furnished.  There  are  other  defects  in  this 
paragraph,  but  we  deem  it  unnecessary  to  now  consider  them^ 

The  second  paragraph  alleges  that  the  appellant  contracted 
with  one  Hill  for  the  erection  of  a  house  on  real  estate  owned 
by  the  former;  that  during  the  year  1877  appellees  furnished 
the  contractor  with  materials  to  be  used  in  said  house;  that 
they  were  so  used,  and  that  the  appellees,  within  sixty  days 
from  the  completion  of  the  house,  filed  notice  of  their  intention 
to  hold  a  lien.  We  have  given  only  an  outline  of  the  paragraph, 
but  one  sufficiently  full  to  exhibit  the  force  of  the  objections 
urged  against  it. 

The  first  point  made  by  the  appellant  is,  that  this  paragraph 
of  the  complaint  does  not  show  that  the  materials  were  fur* 
nished  upon  the  credit  of  appellant's  property.  The  law  un- 
questionably is  that  the  complaint  must  show  that  the  materials 
were  furnished  for  the  building.  (Hill  v.  Sloan,  59  Ind.,  181; 
City  of  Crawfordsville  v.  Lockhart,  58  Ind.,  477.)  The  com- 
plaint is  not  very  direct  or  specific  on  this  point,  but  we  think 
enough  is  shown  to  make  it  good  against  this  objection. 

The  second  objection  which  appellant  urges  against  this 
paragraph  is,  that  it  does  not  show  that  the  notice  v/as  filed 


Sec.  1.]  LAWTON  v.  case.  31 

within  sixty  days  after  the  materials  were  furnished.  The  al- 
legation in  the  body  of  the  pleading,  and  the  recital  in  the  no- 
tice of  lien,  which  is  set  out  as  an  exhibit,  show  that  the  notice 
was  filed  within  sixty  days  after  the  completion  of  the  building, 
but  it  does  not  appear  that  it  was  filed  ^vithin  sixty  days  from 
the  time  the  appellees  furnished  the  materials.  It  was  held  in 
Hamilton  v.  Naylor,  72  Ind.,  171,  that  the  complaint  must  show 
that  the  notice  was  filed  within  sixty  days  from  the  time  the 
materials  were  furnished.  That  case  received  a  second  and 
careful  consideration  upon  full  argument,  on  petition  for  a  re- 
hearing, and  must  be  regarded  as  decisively  settling  the  law 
upon  this  point.  Upon  the  authority  of  that  case,  the  para- 
graph under  examination  must  be  held  bad.  (Woods,  J.,  dis- 
sents. ) 

Some  confusion  seems  to  have  arisen  upon  a  question  of  prac- 
tice. It  is  said  that  a  demurrer  will  not  lie,  but  that  the  remedy 
is  by  motion  to  .strike  out  so  much  of  the  complaint  as  refers  to 
the  lien.  There  are  two  distinct  classes  of  cases,  and  the  con- 
fusion has  arisen  from  confounding  them.  Where  there  is  a 
personal  liability  shown,  and  the  lien  is  auxiliary  or  collateral 
to  such  liability,  then  the  remedy  is  by  motion,  and  not  by  de- 
murrer. The  second  class  is  where  there  is  no  personal  liability, 
and  the  entire  right  of  action  depends  upon  the  validity  of  the 
lien.  The  case  in  hand  is  a  type  of  the  latter  class.  Here  there 
is  no  personal  liability,  and  there  can  be  no  right  of  action 
unless  there  is  shown  to  be  an  existing  valid  lien.  In  such  a 
case  demurrer  is  the  appropriate  mode  of  presenting  the  ques- 
tion of  the  sufficiency  of  the  complaint. 

The  appellant  insists  that  the  court  did  wrong  in  rendering 
a  personal  judgment  against  him,  and  that  the  relief  of  the  ap- 
pellees should  be  confined  to  the  specific  property  covered  by 
the  lien.  It  is  plainly  the  law,  that  no  personal  judgment  can 
be  taken  upon  a  mechanic's  lien,  where  the  owner  is  sued  by  a 
sub-contractor,  unless  the  notice  provided  for  in  section  649  of 
the  statute  is  properly  served  upon  the  owner.  Phillips  on 
Mechanics'  Liens,  Sees.  447,  449;  Crawford  v.  Crockett,  55  Ind., 
220. 

There  is  an  attempt,  in  the  first  paragraph  of  the  complaint, 
to  state  a  cause  of  action  warranting  a  personal  judgment,  but 
the  paragraph  fails  utterly  to  do  so.  We  have  already  noted 
the  fact  that  the  paragraph  is  bad,  because  it  does  not  allege 


32  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

that  the  appellant  was  the  owner  of  the  real  estate  upon  which 
the  house  was  erected,  and  to  this  defect  we  may  now  add  (as 
we  are  considering  the  pleading  from  a  different  point  of  view) 
two  other  very  material  ones.  The  two  defects  to  which  we 
refer  are  the  insuflBciency  of  the  notice  served  upon  the  appel- 
lant, and  the  failure  to  aver  that  there  was  any  indebtedness 
from  him  to  his  contractor.  Hill.  A  complaint  which  seeks  to 
hold  an  owner  for  a  debt  created  by  the  contractor  must  show 
ownership,  the  service  of  a  sufficient  written  notice,  and  that 
when  the  notice  was  served,  the  owner  was  indebted  to  the  con- 
tractor. 

Where  the  complaint  only  seeks  to  subject  the  property  to  the 
lien,  and  asks  no  personal  judgment,  then,  of  course,  it  need 
not  aver  the  existence  of  an  indebtedness  from  the  owner  to  the 
contractor,  nor  the  service  of  notice  as  provided  in  section  649. 
The  first  paragraph  of  the  complaint  under  mention  is  so 
framed  as  to  attempt  to  create  a  personal  liability  and  establish 
a  right  to  a  foreclosure  of  the  lien  against  the  property.  It  is 
bad  as  a  complaint  for  personal  judgment,  as  well  as  for  the 
foreclosure  of  a  material  man's  lien.  The  pleader,  instead  of 
showing  a  cause  of  action  for  both  a  personal  judgment  and  a 
foreclosure,  has  failed  to  show  a  right  to  either. 

Judgment  reversed,  at  costs  of  the  appellees.* 


LINTON  V.  UNEXCELLED  FIRE-WORKS  CO. 

138  N.  Y.,  67.2.    [1891.] 

Appeal  from  Supreme  Court,  general  term,  second  depart- 
ment. 

Action  by  Charles  B.  Linton  against  Unexcelled  Fire- Works 
Company,  to  reform  a  written  contract,  and  for  judgment  there- 
on. Defendant  pleaded  a  counter-claim.  At  special  term  the 
court  gave  judgment  against  the  counter-claim,  and  also  dis- 

*See  also  Brown  v.  Joliet,  22  111.  123  (Special  assessment);  Clinton 
ex  rel.  v.  Henry  Co.,  115  Mo.  557  (special  tax  bill);  Schmeiding  v. 
Ewing,  57  Mo.  78  (Mechanic's  lien) ;  Plummer  v.  Eckenrode,  50  Md. 
225;  McGraw  v.  McCarty,  78  Ind.  496.  For  a  full  discussion  of  actions 
by  attachment  against  non-residents,  etc.,  see  Freeman  v.  Alderson, 
119  U.  S.  185. 


Sec.  1.]         LINTON  V.  unexcelled  fire- works  CO.  33 

missed  the  complaint.  On  appeal  to  the  general  term  by  both 
parties,  the  judgment  dismissing  the  complaint  was  reversed, 
and  judgment  rendered  for  plaintiff,  and  the  judgment  against 
defendant's  counter-claim  was  affirmed.  Defendant  appeals. 
Heversed. 

It  appeared  that  in  1884  plaintiff  orally  agreed  to  perform 
certain  services  for  defendant,  who  agreed  to  give  him  $2,000 
per  year  as  salary,  and,  in  addition  thereto,  the  "net  earnings" 
of  thirty  shares  of  his  (defendant's)  stock  to  be  paid  by  issuing 
to  plaintiff  said  shares  when  the  "net  earnings"  should  aggre- 
gate $3,000,  their  par  value.  This  agreement  was  afterwards 
reduced  to  writing,  and  the  words  "net  earnings"  were  re- 
placed by  the  word  "dividends."  The  writing  was  dated  as 
of  the  day  of  the  verbal  agreement.  The  "net  earnings"  of  the 
thirty  shares  during  the  three  years  of  the  continuance  of  the 
contract  (1884  to  1887)  were  $2,550,  while  the  dividends  were 
much  less.  Plaintiff  had  already  received  a  certificate  for  21 
shares  of  the  stock,  and  he  contended  that  he  was  entitled  to  4iA 
shares  more,  so  as  to  aggregate  25i/^  shares  ($2,550  net  earn- 
ings). Defendant  contended  that  plaintiff  was  entitled  to  only 
15  shares  of  the  stock,  or  $1,^00,  which  was  the  amount  of  the 
dividends  on  30  shares  for  the  three  years,  and  interposed  a 
counter  claim  for  6  shares. 

Peckham,  J. :  The  trial  court  found  the  original  agreement 
between  the  parties  was  based  upon  the  earnings  of  the  30  shares 
of  stock  instead  of  upon  the  dividends.  It  found  the  written 
contract  was  executed  in  January,  1886,  and  while  the  oral  con- 
tract was  in  existence.  That  written  contract  used  the  word 
''dividends"  instead  of  ** earnings."  The  plaintiff  asked  to 
have  the  written  paper  reformed  so  as  to  express  the  real  agree- 
ment, and  he  alleged  that  the  word  "dividends"  Avas  used  in  the 
writing  by  mutual  mistake.  There  was  substantially  no  con- 
tradiction in  the  evidence  as  to  the  fact  that  the  parties  meant 
the  written  contract  to  embody  the  terms  of  the  oral.  The  per- 
son who  dictated  the  agreement  to  the  stenographer  employed 
by  defendants  was  not  himself  present  when  the  oral  agreement 
between  the  plaintiff  and  the  then  president  of  the  defendant 
was  made,  and  so  he  asked  the  plaintiff  what  the  terms  were 
under  which  he  was  employed  by  defendant.  While  not  positive 
as  to  the  reply  of  the  plaintiff  whether  he  used  the  word  ' '  earn- 
ings" or  "dividends,"  as  the  importance  of  the  distinction  had 
3 


34  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

not  then  appeared,  lie  says  lie  is  of  the  impression  that  plain- 
tiff used  the  word  "dividends."  At  any  rate,  that  word  ap- 
pears in  the  written  contract  signed  by  both  parties. 

The  learned  judge  dismissed  the  plaintiff's  complaint,  be- 
cause he  said  there  was  no  proof  of  a  mutual  mistake  in  the 
use  of  the  word  "dividends"  in  the  written  contract.  The  court 
also  overruled  the  defendant's  counter-claim,  on  the  ground 
that  the  payment  of  the  21  shares  of  stock,  although  an  overpay- 
ment under  the  written  contract,  was  yet  a  voluntary  one,  and 
so  could  not  be  recovered  back.  Both  parties  appealed,  and 
the  general  term,  on  the  plaintiff's  appeal,  reversed  the  judg- 
ment dismissing  the  complaint,  and  held  the  plaintiff  entitled  to 
recover  the  shares  of  stock  claimed  by  him,  and,  without  re- 
forming the  written  agreement,  gave  judgment  absolute  in  plain- 
tiff's favor,  decreeing  that  defendant  should  issue  the  four  and 
a  half  further  shares  claimed  by  the  plaintiff.  The  judgment 
against  the  counter-claim  of  the  defendant  was,  on  defendant's 
appeal,  afarmed,  with  costs.  We  think  the  general  term  erred  in 
this  disposition  of  the  question.  There  was  an  original  oral 
agreement  between  the  parties,  and  the  court  finds  that  it  pro- 
vided for  the  issuing  of  the  stock  based  upon  earnings  instead 
of  dividends.  The  written  agreement  was  intended  to  embody 
the  terms  of  the  oral  one.  It  is  said  that  Mr.  Johnson,  who 
acted  for  defendant,  and  dictated  the  substance  of  the  agreement 
to  be  written  out,  no  doubt  intended  to  embody  the  terms  of  the 
oral  agreement,  but  only  as  he  understood  them ;  and  that,  as  he 
understood  them  to  be  dividends,  he  has  made  no  mistake  on 
the  part  of  the  defendant,  and  that  hence  there  was  no  mutual 
error  within  the  meaning  of  the  law,  and  so  the  written  agree- 
ment should  not  be  reformed.  Having  found  that  the  terms 
of  the  oral  agreement  included  the  earnings  of  the  company  as 
distinguished  from  the  dividends,  and  the  parties  really  intend- 
ing to  put  in  writing  the  terms  of  such  oral  agreement,  if  Mr. 
Johnson  placed  the  word  "dividends"  therein,  supposing  that 
such  was  one  of  the  terms  of  the  agreement,  when  in  truth  it 
was  not,  and  if  the  plaintiff  signed  the  same  supposing  that  it 
actually  embodied  the  terms  of  the  oral  contract,  when  in  truth 
it  did  not,  we  think  a  case  was  made  out  for  the  reformation 
of  the  written  contract.  The  mistake  of  Mr.  Johnson  was  in 
regard  to  what  were  in  reality  the  terms  of  the  oral  contract, 
and  when  he  intended  to  embody  those  terms  in  the  written 


Sec.  1.]         LINTON  V.  unexcelled  fire- works  CO.  35 

contract,  althougli  he  placed  therein  just  what  he  intended  to,  if 
he  in  fact  mistook  those  terms;  and,  if  the  plaintiff  mistakenly 
supposed  he  had  embodied  in  the  writing  the  terms  of  the  oral 
contract  when  he  had  not,  a  mistake  was  made  which  a  court 
of  equity  has  power  to  relieve  against.  "We  do  not,  however, 
think  that  relief  could  be  had  by  reference  only  to  the  original 
oral  contract,  and  in  spite  of  the  terms  of  the  subsequent  written 
one,  without  reforming  such  written  one  so  as  to  conform  to  the 
truth.  A  written  contract  is  always  set  out  as  the  exponent  of 
the  oral  understanding  of  the  parties.  "While  it  exists  as  a  full 
and  legal  agreement,  it  must  control  as  to  all  the  terms  expressed 
in  it,  and,  when  such  terms  differ  from  those  of  prior  oral  ones, 
the  writing  must  control.  It  is  necessary,  therefore,  to  reform 
it  so  as  to  express  the  true  agreement.  In  this  case  the  learned 
judge  refused  to  find  that  neither  party  understood  the  words 
used  in  the  wi'itten  agreement  to  mean  differently  than  the 
words  of  the  oral  agreement.  There  is  some  confusion  in  the  find- 
ing's in  the  case,  caused,  as  I  think,  by  the  views  of  the  learned 
judge  as  to  the  rights  of  the  parties,  assuming  that  Mr.  Johnson 
meant  to  use  the  word  "dividends"  in  the  written  agreement. 
In  that  event  he  thought  plaintiff  ought  not  to  have  the  contract 
reformed.  Differing  somewhat  with  those  views  of  the  case,  and 
regarding  the  order  and  judgment  of  the  general  term  as  in  any 
event  erroneous,  we  have  thought  it  best  for  all  parties  that 
there  should  be  a  new  trial,  and  the  whole  case  more  fully  pre- 
sented to  the  court.  "We  think  judgments  of  the  general  and 
special  terms  should  be  reversed,  and  a  new  trial  granted,  with 
costs  to  abide  event.     All  concur.* 


FELGER  V.   COWARD. 

35  Cal.,  650.     [1868.] 

Appeal  from  the  District  Court,  Thirteenth  Judicial  District, 
Mariposa  County. 

This  was  an  action  of  ejectment  for  the  possession  of  an  eighth 
undivided  interest  in  a  mining  claim  and  quartz  miU  situated  in 

*See  also  Popijay  v.  Miller,  133  Ind.  19  (reformation  of  a  deed  con- 
veying more  land  than  was  intended).  Hancock  v.  Blackwell,  139  Mo. 
440  (cancellation  of  a  release  of  a  prior  claim),  McAnaw  v.  Clark,  167 
Mo.  443   (right  of  an  insane  grantor  to  avoid  deed). 


36  NATURE    AND    FORMS    OP    ACTIONS.  [ChAP.  I. 

Mariposa  County.  The  complaint  was  in  the  usual  form,  and 
the  answer  traversed  all  of  its  material  averments.  It  appeared 
from  the  evidence  at  the  trial,  which  was  by  the  Court,  without 
a  jury,  that  the  defendant  entered  into  a  written  agreement  with 
the  plaintiff  to  convey  to  the  latter  by  sufficient  deed  said  inter- 
est in  said  mining  claim  and  mill,  upon  the  payment  to  the  de- 
fendant, at  a  stipulated  time,  of  the  purchase  price,  for  which 
a  promissory  note  was  executed  and  delivered  by  plaintiff  to  the 
defendant.  The  evidence  further  tended  to  prove  that  plaintiff 
had,  before  suit  brought,  complied  with  said  agreement  on  his 
part,  and  that  the  defendant  refused  to  make  said  conveyance  as 
stipulated,  and  repudiated  said  agreement.  Prior  to  the  execu- 
tion of  said  agreement  the  plaintiff  had  been  at  work  in  said 
mine  in  the  employ  of  the  defendant  and  others  of  its  owners, 
and  after  said  agreement,  and  until  a  short  time  before  the  com- 
mencement of  this  suit,  the  plaintiff  continued  at  work  in  said 
mine,  receiving  wages  for  his  labor,  and  the  dividends  there- 
from proportionate  to  said  interest  therein,  of  which,  accord- 
ing to  said  agreement,  he  was  to  become  the  purchaser. 

Judgment  passed  for  the  plaintiff  in  the  Court  below,  with- 
out any  findings  of  fact  being  made  and  filed,  and  thereupon 
the  defendant  moved  for  a  new  trial,  on  the  ground  that  the 
judgment  was  against  the  evidence  and  against  the  law.  The 
motion  was  denied,  and  the  defendant  appealed  from  the  judg- 
ment and  from  the  order  denying  said  motion  for  a  new  trial. 

By  the  Court,  Sanderson,  J. : 

In  Patterson  v.  The  Keystone  Mining  Co.,  30  Cal.,  360,  our 
attention  was  called  to  the  statute  of  the  13th  of  April,  1860 
(Stats.  1860,  p.  175),  in  relation  to  the  conveyance  of  gold  min- 
ing claims,  and  we  considered,  arguendo,  that  it  had  abrogated 
the  rule  announced  in  the  case  of  the  Table  Mountain  Tunnel 
Co.  V.  Stranahan,  20  Cal.,  198,  to  the  effect  that  title  to  a  mining 
claim  would  pass  by  a  verbal  sale,  if  accompanied  by  a  transfer 
of  the  possession.  In  the  subsequent  case  of  Goller  v.  Fett,  30 
Cal.,  484,  the  effect  of  the  statute  came  up  for  further  con- 
sideration, and  its  construction  became  indispensable  to  the 
final  disposition  of  that  case,  and  the  effect  suggested  in  Patter- 
son V.  The  Keystone  Mining  Co.  was  formally  declared  to  be 
the  effect  of  the  statute,  and  that  title  to  gold  mining  claims 
could  be  passed  only  by  an  instrument  in  writing.  (See  also 
King  V.  Randlett,  33  Cal.,  318.) 


Sec.  1.]  FELGER   V.    COWAED.  37 

The  rule  established  in  Goller  v.  Fett  seems  to  be  conclusive 
of  the  present  case.  It  is  an  ordinary  action  of  ejectment,  and 
the  plaintiff,  at  least,  showed  only  a  contract  by  the  defendant 
to  convey.  His  remedy  was  for  specific  performance,  and,  as 
incidental  to  that,  delivery  of  the  possession. 

Order  denying  a  new  trial  reversed  and  new  trial  granted. 

Mr.  Justice  Sawyer  expressed  no  opinion. 


WILDMAN   V.   WILDMAN. 
70  Conn.,  700.    [1S98.] 

Suit  by  Alexander  Wildman  against  Susan  E.  "Wildman  for 
an  injunction  and  for  the  delivery  and  concellation  of  certain 
deeds.  Judgment  for  defendant,  and  plaintiff  appeals.  Af- 
firmed. 

Andrews,  C.  J. :  Of  the  very  numerous  assignments  of  error 
presented  by  this  appeal,  those  arising  upon  that  part  of  the 
record  which  pertains  to  the  third  defense  are  controlling  of 
the  whole  case.  The  trial  court,  in  finding  the  issue  made  by 
the  denial  of  that  defense,  in  favor  of  the  defendant,  decided, 
as  a  matter  of  fact,  that  the  same  cause  of  action  as  is  set  forth 
iu  this  complaint  had  been  adjudicated  and  decided  between 
the  same  parties  in  the  former  actions  mentioned  in  said  de- 
fense, and,  in  sustaining  the  defendant's  demurrer  to  the  plain- 
tiff's replication  to  that  defense,  the  court  decided  the  same 
question,  in  the  same  way,  as  a  matter  of  law.  If  the  latter 
decision  is  without  error,  then  there  is  no  harmful  error  any- 
where in  the  entire  record. 

"It  is  an  established  rule  in  the  administration  of  justice  that 
all  controversies  between  parties,  once  litigated  and  fully  and 
impartially  determined,  shall  cease;  and  to  that  end  no  fact 
involved  in  such  litigated  controversy,  shown  by  the  record 
to  have  been  material  to  its  determination,  and  to  have  been  put 
in  issue  and  decided,  vrhether  the  proceeding  was  at  law  or  in 
equity,  shall  again  be  litigated  between  the  same  parties. ' '  Mun- 
son  V.  Munson,  30  Conn.,  425.  433.  "The  rule  of  res  judicata 
does  not  rest  wholly  on  the  narrow  ground  of  a  technical  es- 
toppel, nor  on  the  presumption  that  the  foi-mer  judgment  was 


38  NATURE    AND    FORMS    OF    ACTIONS,  [ChAP.  I. 

right  and  just,  but  on  the  broad  ground  of  public  policy  that 
requires  a  limit  to  litigation — a  curb  on  the  litigiousness  of  the 
obstinate  litigant.  Like  the  statute  of  limitations,  it  is  a  rule 
of  rest.  As  expressed  by  Judge  Pardee  in  Supples  v.  Cannon, 
44  Conn,,  424,  428,  "The  policy  of  the  law  is  that,  if  a  claim  has 
once  been  passed  upon  by  a  court  of  competent  jurisdiction,  it 
shall  not  be  thereafter  controverted  between  the  same  parties, 
and  this  in  the  interest  of  peace."  Sargeant  v.  Steamboat  Co., 
05  Conn.,  116,  126,  31  Atl.  543,  547,  Hamersley,  J.:  "The 
judgment  of  a  court  of  concurrent  jurisdiction  directly  upon 
the  point  is,  as  a  plea,  a  bar,  or  as  evidence,  conclusive  be- 
tween the  same  parties,  upon  the  same  matter,  directly  in  ques- 
tion in  another  court."  Duchess  of  Kingston's  Case,  2  Smith, 
Lead.  Cas.,  573.  The  binding  force  of  the  rule  stated  in  these 
authorities  is  not  in  any  degree  disputed  by  the  appellant.  He 
admits  it.  But  he  contends  that  this  case  does  not  come  within 
it.  It  is  difficult,  however,  to  reconcile  the  plaintiff's  claim  in 
this  behalf  made  in  this  court  with  his  claims  made  in  the  court 
below.  We  learn  from  the  finding  of  facts  that  "the  plaintiff 
offered  in  evidence  the  entire  record,  pleadings,  finding  of  facts, 
and  files  of  the  judgment  in  two  previous  trials  between  the 
same  parties,  claiming  the  same  as  conclusive  upon  the  parties 
in  regard  to  the  facts  in  this  suit,  and  offered  the  same  to 
prove  the  allegations  of  the  complaint";  and  that  he  "offered 
no  other  evidence  than  said  record,  pleadings,  findings,  and 
judgments  in  proof  of  the  allegations  of  his  complaint,  and 
thereupon  rested  his  case."  Claiming  as  he  did  that  the  record 
in  the  former  case  was  conclusive  upon  the  parties  in  this  case, 
he  thereby  claimed  (for  otherwise  the  record  would  not  have 
had  that  effect)  that  the  same  point  was  directly  in  issue  in  this 
case  which  was  directly  pas.sed  upon  in  the  former  case.  Duchess 
of  Kingston's  Case,  supra.  The  application  for  an  injunction 
against  using  the  deeds  was  a  part  of  that  suit  and  nothing  else. 
Every  action  is  brought  in  order  to  obtain  some  particular 
result,  which  is  termed  the  "remedy."  This  final  result  is 
not  the  "cause  of  the  action";  it  is  rather  the  "object  of  the 
action."  Every  judicial  action  has  in  it  certain  necessary  ele- 
ments— a  primary  right  belonging  to  the  plaintiff,  and  a  corre- 
sponding primary  duty  devolving  upon  the  defendant;  a  delict 
or  wrong  done  by  the  defendant,  which  consisted  in  a  breach 
of  such  primary  right  and  duty;  a  remedial  right  in  favor  of 


Sec.  1.]  WILDMAN    V.    WILDMAN.  39 

the  plaintiff,  and  a  remedial  duty  resting  on  the  defendant 
springing  out  of  this  delict;  and,  finally,  the  remedy  or  relief 
itself.  Every  action  however  simple  must  contain  these  es- 
sential elements,  and,  however  complicated,  it  has  no  more.  Of 
these  elements  the  primary  right  and  duty,  and  the  delict  or 
wrong,  constitute  the  cause  of  action.  They  are  the  legal  cause 
or  foundation  whence  the  cause  of  action  springs.  Pom.  Rem., 
§453.  Stated  in  brief,  a  cause  of  action  may  be  said  to  consist 
of  a  right  belonging  to  the  plaintiff,  and  some  wrongful  act  or 
omission  done  by  the  defendant,  by  which  that  right  has  been 
violated.  Veeder  v.  Baker,  83  N.  Y.,  156,  160 ;  Yale  Law  Jour- 
nal, March,  1898,  p:  246,  Prentice,  J. ;  Phil.  Code  PI.,  §31. 

An  inspection  of  the  record  in  this  action  and  a  comparison 
of  its  averments  in  the  former  case  show  that  this  action  is  be- 
tween the  same  parties  as  was  the  former  one,  and  that  in  each 
action  the  parties  are  litigating  in  the  same  right,  the  plaintiff 
as  the  owner  of  certain  lands — the  same  in  the  former  action  as 
in  this  case — and  the  defendant  in  her  individual  right;  that 
the  deeds  which  it  is  sought  to  set  aside  in  this  action  are  the 
very  same  deeds  which  it  was  sought  to  set  aside  in  the  former 
one;  that  the  sole  delict  or  wrongful  act  of  which  the  plaintiff 
complained  of  in  the  former  suit,  and  the  main  delict  of  which 
he  now  complains,  i.  e.,  the  putting  of  the  said  deeds  on  record, 
is  the  same  in  this  action  as  in  the  former  one;  and  that  the 
main  part  of  the  relief  claimed,  i.  e.,  that  said  deeds  be  de- 
livered up  to  be  canceled,  is  the  same  in  this  action  as  in  that. 
In  each  of  the  actions  we  are  comparing  the  plaintiff  de- 
clares as  the  owner  of  certain  land.  The  primary  right  of  own- 
ership of  land  includes  in  it  certain  special  rights,  as  the  right 
to  use  the  land  in  any  manner  permitted  by  law,  and  to  have 
the  unmxolested  occupation  of  it,  as  well  as  to  have  an  unmol- 
ested title  to  it.  And  these  primary  rights  belonging  to  the 
plaintiff  impose  the  correlative  primary  duty  on  the  part  of  all 
mankind  to  forbear  from  molesting  him  in  such  use,  occupation 
or  title.  In  each  of  these  actions  the  defendant  is  charged  with 
putting  certain  deeds  on  the  town  record  in  the  town  where  the 
land  lies;  and  it  is  in  each  case  the  same  deeds  and  the  same 
act  of  putting  them  upon  the  record  that  is  charged.  It  is  this 
act  of  putting  these  deeds  upon  the  record  which  is  complained 
of  in  each  action  as  violating  the  plaintiff's  primary  right  to 
have  an  unmolested  title  to  his  lands.     In  both  actions  it  is  the 


40  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

same  primary  right  belonging  to  the  plaintiff  which  is  averred, 
and  one  and  the  same  act  done  by  the  defendant  by  which  that 
primary  right  is  said  to  be  violated.  Going  back  to  the  defini- 
tion of  a  cause  of  action  given  a  little  above,  we  are  not  able 
to  see  why  "the  legal  cause  or  foundation  whence  the  cause  of 
action  springs"  is  not  the  same  in  the  former  action  as  in  this 
one. 

It  is  true  that  the  relief  claimed  is  not  a  part  of  the  cause 
of  action.  But  the  relief  claimed  may  serve  to  determine  what 
the  cause  of  action  is.  The  cause  of  action  is  the  existence  of 
that  state  of  facts,  or  the  existence  of  a  state  of  facts,  which 
entitles  the  plaintiff  to  the  relief  claimed.  The  plaintiff  sued 
as  the  owner  of  certain  lands.  Such  ownership  clothed  him 
with  the  primary  right  to  have  an  unclouded  title  to  those 
lands.  The  relief  claimed  was  that  deeds  of  those  lands  which 
the  defendant  had  put  on  the  town  record  be  delivered  up  to  be 
canceled.  He  would  not  be  entitled  to  that  relief  unless  he  had 
such  a  title  to  the  lands  described  in  them  that  the  act  of  the 
defendant  in  putting  those  deeds  on  the  town  record  violated 
his  primary  right  to  have  such  an  unclouded  title  thereto.  And 
this  he  must,  of  course,  set  out  in  the  complaint.  It  was  a  part 
of  his  case.  Without  it,  he  would  have  no  right  to  the  remedy, 
and  the  complaint  would  show  no  cause  of  action.  If  the  deeds 
which  the  defendant  had  recorded  were  valid,  at  the  time  they 
were  so  put  upon  the  records,  then  the  plaintiff  did  not  have 
such  a  title.  It  was  essential,  therefore,  that  in  the  complaint, 
these  deeds  be  averred  to  be  invalid  at  the  time  of  such  putting 
them  upon  the  records;  because  that  is  the  time  at  which,  if 
ever,  the  act  of  the  defendant  in  recording  them  did  injury  to 
the  plaintiff,  and  otherwise  the  complaint  would  not  show  a 
sufficient  cause  of  action.  In  his  complaint  in  the  former  action 
the  plaintiff  negatived  the  validity  of  these  deeds,  by  alleging 
that  they  had  never  been  executed  or  delivered  by  him.  If  this 
allegation  was  true,  then  the  plaintiff  was  entitled  to  the  relief 
claimed,  for  the  reason  that  the  deeds  w^ere  invalid  when  re- 
corded. In  his  complaint  in  the  present  action  he  negatives  the 
validity  of  the  deeds  by  alleging  that  they  had,  as  between  the 
parties,  before  they  were  recorded,  been  canceled.  If  this  allega- 
tion was  true,  then  the  plaintiff  was  entitled  to  the  relief 
claimed,  for  the  same  reason;  that  is,  that  the  deeds  were  in- 
valid at  the  time  of  the  recording.     It  is  the  invalidity  of  the 


Sec.  1.]  WILDMAN    V.    WILDMAN.  41 

deeds  at  the  time,  from  whatever  cause  arising,  that  is  the  es- 
sential element  of  the  plaintiff's  cause  of  action.  The  cause 
which  produces  the  invalidity  is  only  an  evidential  circum- 
stance; it  is  not  an  element,  certainly  not  an  essential  element, 
in  the  cause  of  action.  The  invalidity  of  the  deeds  at  the  time 
of  the  recording  being  the  same  in  each  complaint,  it  is  the  same 
cause  of  action  in  both. 

The  cause  of  action  is  the  existence  of  a  state  of  facts  which 
entitled  the  plaintiff  to  the  relief  claimed.  Any  state  of  facts 
which  entitles  the  plaintiff  to  that  relief,  shows  a  cause  of  ac- 
tion. Such  a  state  of  facts  may  be,  and  usually  is,  made  up  of 
several  ingredients.  It  is  easy  to  perceive  that  there  might  be 
more  than  one  statement  of  facts  containing  some  one  or  more 
different  ingredients,  each  showing  the  same  right  to  recover 
with  the  facts  of  each  existing  at  the  same  time.  And,  although 
the  ingredients  in  such  statements  might  differ,  if  each  showed 
that  the  plaintiff  was  the  owner  of  the  same  right,  that  the  de- 
fendant had  committed  the  same  violation  of  that  right,  and 
that  the  plaintiff  was  entitled  to  the  same  relief,  they  would 
each  show  the  same  cause  of  action,  and  not  a  different  one. 
Such,  we  think  is  this  case.  "If  the  facts  alleged  show  one 
primary  right  of  the  plaintiff,  and  one  wrong  done  by  the  de- 
fendant, which  involves  that  right,  the  plaintiff  has  stated  but 
a  single  cause  of  action.  In  applying  this  test,  however,  it  must 
be  observed  that  the  single  primary  right,  and  the  single  wrong, 
which,  taken  together,  constitute  the  one  cause  of  action,  may 
each  be  very  complicated.  For  example,  the  primary  rights  of 
ownership  include  not  only  the  particular  subordinate  right  to 
use  the  thing  owned  in  any  manner  permitted  by  the  law,  but 
also  similar  rights  to  the  forbearance  on  the  part  of  all  man- 
kind to  molest  the  proprietor  in  such  use.  The  facts  which 
constitute  the  delict  complained  of  may  embrace  not  only  the 
wrongful  obtaining,  and  keeping  possession,  in  such  a  case  as 
the  one  last  supposed,  but  also  the  procuring  and  holding  deeds 
of  conveyance,  or  other  muniments  of  title,  by  which  such  pos- 
session is  made  possible  and  to  appear  rightful.  These  sug- 
gestions are  necessary  to  guard  against  the  mistake  of  sup- 
posing that  a  distinct  cause  of  action  will  arise  from  each 
special  subordinate  right  included  in  the  general  primary  right 
held  by  the  plaintiff,  or  from  each    particular    act    of   wrong 


42  NATURE    AND    FORMS    OP    ACTIONS.  [ChAP.  I. 

which,  in  connection  with  others,  may  make  up  the  composite, 
but  single,  delict  complained  of.     Pom.  Rem.  No.  455. 

The  inspection  of  the  record  also  discloses  that  the  different 
causes  by  which  the  invalidity  of  the  deeds  is  shown  were  both 
known  to  the  plaintiff  before  he  brought  the  former  suit,  and 
that,  by  proper  care,  both  might  have  been  shown  on  the  former 
trial.  A  single  cause  of  action  cannot  be  split  in  two.  If  the 
plaintiff's  complaint  in  the  former  action  was  so  framed  that 
he  could  not  avail  himself  of  all  the  evidence  which  he  had  to 
prove  his  right  to  recover,  and  so  suffered  a  defeat,  it  may  be 
his  misfortune.  He  sought  an  amendment  to  enlarge  the  issue, 
but  at  so  late  a  stege  of  the  trial  that  the  judge  for  that  reason 
disallowed  the  motion.  By  that  judgment  the  plaintiff  is  bound. 
His  cause  of  action  has  been  adjudicated.  He  cannot  now  have 
another  trial,  to  enable  him  to  use  such  other  evidence  to  obtain 
the  same  remedy.  Cromwell  v.  Sac.  Co.,  94  U.  S.  351;  Burritt 
V.  Belfey,  47  Conn.  323.  "The  policy  of  the  law  is  that,  if  a 
claim  has  once  been  passed  upon  by  a  court  of  competent  juris- 
diction, it  shall  not  thereafter  be  controverted  between  the 
same  parties,  and  this  in  the  interest  of  peace."  "There  must 
be  a  limit  to  litigation :  a  curb  on  the  litigiousness  of  obstinate 
litigants."  Sargeant  v.  Steamboat  Co.,  supra.  Hamersley,  J. 
There  is  no  error.  The  other  judges  concur,  except  Plamersley, 
J.,  who  dissents. 

Hamersley,  J.  (dissenting).  The  only  issue  raised  by  the 
pleadings  and  tried  by  the  first  court  was,  did  the  plaintiff  ex- 
ecute and  deliver  the  deeds?  He  asked  to  have  them  delivered 
up  in  court  for  cancellation  solely  on  the  ground  that  they  were 
not  his  deeds.  Upon  this  issue  evidence  was  received  tending 
to  support,  and,  as  the  court  found,  proving,  a  state  of  facts 
which  entitled  the  plaintiff  to  an  injunction  against  a  plain 
abuse  of  trust  in  the  use  of  the  property  described  in  the  deeds. 
The  plaintiff  claimed  that,  because  of  this  state  of  facts,  the 
giving  of  the  deeds  to  the  defendant  was  not  a  legal  delivery 
with  intent  to  pass  the  title.  The  court  overruled  the  claim,  and 
rendered  judgment  for  the  defendant.  It  thus  appears  by  the 
record  that  the  facts  found  by  the  court,  which  support  an  ac- 
tion founded  on  a  breach  of  trust,  were  held  not  relevant  to 
the  issue  in  the  former  action  founded  on  possession  of  void 
deeds.  The  present  action  is  based  upon  the  breach  of  trust  and 
asks  an  injunction  against  a  further  breach,  and  the  court  be- 


Sec.  1.]  WILDMAN    V.    WILDMxVN.  ■  43 

low  holds  that  this  is  the  same  cause  of  action  adjudicated  in 
the  former  suit. 

In  the  first  action  the  plaintiff's  right  was  to  have  void  deeds 
in  the  possession  of  another  canceled.    This  right  the  law  gives 
him,  irrespective  of  any  use  that  may  be  made  of  them.     The 
law  imposed  upon  the  defendant  a  duty  to  surrender  the  deeds, 
however  innocent  her  possession  might  be.     The  delict  or  wrong 
was  a  neglect  to  surrender  the  deeds.     The  remedy  in  such  a 
case  is  a  compulsory  surrender  in  court  for  cancellation.     In 
the  second  action  the  plaintiff's  right  is  to  have  a  trust,  which 
had  attached  to  a  valid  conveyance  of  land,  enforced.    The  law 
imposed  upon  the  defendant  the  duty  of  faithful  performance 
of  that  trust.     The  delict  or  the  wrong  was  a  violation  of  the 
trust  by  mortgaging  the  trust  property  and  appropriating  the 
proceeds  to  her  own  use.     The  remedy  in  such  case  is  an  en- 
forced reconveyance  of  the  property  or  an  injunction  against 
the  further  abuse  of  the  trust.    The  latter  remedy  is  sought  in 
this  suit.     I  fail  to  see  how  two  causes  of  action  can  be  the 
same  when,  in  each,  the  right  of  the  plaintiff,  the  duty  of  the 
defendant,  the  delict  charged,  and  the  remedy  sought  are  all 
different.     It  is  suggested  that  identity  consists  in  the  primary 
right  of  a  landowner  to  have  an  unclouded  title.    If  we  go  back 
to  such  broad  primary  rights  as  the  operative  test  of  the  scope 
of  a  judgment,  we  lose  our  hold  on  the  certainty  which  is  es- 
sential to  a  judgment,  but  by  that  test  the  causes  of  action  are 
not  the  same.     In  the  present  case  the  plaintiff  seeks  something 
very  different  from  the  enforcement  of  his  primary  right  to  an 
unclouded  title.    He  seeks  to  compel  the  holder  of  a  legal  title 
to  execute  a  trust.    These  deeds  were  drawn  in  1884.  The  plain- 
tiff's cause  of  action  set  up  in  the  first  place  was  complete  upon 
the  defendant's  possession  of  the  deeds.     (The  allegation  that 
they  had  been  placed  on  record  was  mere  matter  of  aggravation, 
which  could  not  alter  or  enlarge  the  cause  of  action  alleged.) 
Had  the  plaintiff  brought  his  first  action  in  1884,  and  the  same 
judgment  been  rendered  against  him,  would  it  for  a  moment  be 
claimed  that  he  could  not  now  maintain  his  present  action  to 
enforce  the  execution  of  a  trust  under  the  deeds  then  adjudged 
to  be  valid?     Certainly,  in  such  case,  the  two  causes  of  action 
must  be  entirely  distinct.     How  does  the  lapse  of  time  effect 
the  nature   of  the  cause  of  action?     During  the  intervening 
years  a  new  and  a  different  cause  of  action  has  accrued.    Why 


44  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

should  not  tlie  plaintiff  try — First,  the  cause  of  action  that  has 
existed  since  1884,  and,  second,  the  different  cause  of  action  that 
has  intervened?  It  is  said  he  cannot  split  a  cause  of  action. 
True,  the  rule  against  this  is  strict  and  salutary.  But  it  does 
not  mean  that  he  must  join  different  causes  of  action,  even 
when  arising  from  the  same  transaction.  The  plaintiff  might 
have  joined  the  cause  of  action  in  this  suit  with  the  one  stated 
in  the  former  suit,  but  he  could  not  have  stated  them  as  one 
cause  of  action.  The  allegation  that  he  never  executed  or  de- 
livered the  deeds  is  essential  to  his  cause  of  action  in  the  first 
suit,  and  the  allegation  that  he  did  execute  and  deliver  the 
deeds  is  essential  in  the  second;  but  these  allegations  are  con- 
tradictory and  repugnant,  and  cannot  both  be  alleged  as  facts 
supporting  a  single  cause  of  action.  The  plaintiff  could  not  on 
the  former  suit,  have  tried  the  breach  of  trust  now  alleged,  with- 
out stating  it  as  a  distinct  cause  of  action.  This  he  was  not 
bound  to  do. 

It  appears  upon  record  that  the  judge  who  tried  the  first  case 
was  of  opinion  that  the  plaintiff  was  entitled  to  recover  in  an 
action  like  the  one  now  before  us,  and  he  rendered  judgment 
against  him  because  the  facts  potent  to  support  this  action 
were  not  relevant  to  the  one  then  on  trial.  And  it  is  now  held 
that,  having  proved  those  facts  in  the  former  action,  where 
the  court  said  they  were  not  relevant,  the  plaintiff  cannot  now 
prove  them  in  this  action.  A  record  disclosing,  so  far  as  the 
opinion  of  the  judge  goes,  the  right  of  the  plaintiff  to  the  rem- 
edy now  sought,  is  made,  and  apparently  for  that  veiy  reason, 
a  bar  to  his  asserting  that  right.  It  sometimes  happens  that  a 
litigant's  cause  is  so  mismanaged  that  a  court  finds  it  impos- 
sible to  discover  a  remedy.  The  plaintiff's  cause  may  have  been 
mismanaged,  but  he  ought  not  to  suffer  unless  the  necessity  is 
clear.  For  the  reasons  given,  I  think  no  necessity  exists;  that 
the  superior  court  erred  in  sustaining  the  third  defense;  and 
that  a  new  trial  should  be  granted. 


Sec.  2.]  barnes  v.  quigley.  45 


^ 


Section  2.    One  Form  of  Action. 


Code  Provisions:    Only  one  form  of  civil  action. 

There  is  only  one  form  of  civil  action.  The  distinction  be- 
tween actions  at  law  and  suits  in  equity,  and  the  forms  of  those 
actions  and  suits,  have  been  abolished. — N.  Y.  Code  Civ.  Proc. 
Sec.  3339. 

Civil  actions  and  designation  of  parties  thereto.  There  shall 
be  in  this  state  but  one  form  of  action  for  the  enforcement  or 
protection  of  private  rights,  and  the  redress  or  prevention  of 
private  wrongs,  which  shall  be  denominated  a  civil  action;  and 
the  party  thereto  complaining  shall  be  known  as  the  plaintiff, 
and  the  adverse  party  as  the  defendant. — Mo.  B.  8.  1899.  Sec. 
539. 

BARNES  V.  QUIGLEY. 

59  N.  Y.  265.   [1874.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  second  judicial  department,  affirming  a  judgment 
in  favor  of  plaintiff,  entered  upon  a  verdict,  and  affirming  an 
order  denying  a  motion  for  a  new  trial. 

The  complaint  in  this  action,  in  substance,  alleged  that  on  the 
3d  day  of  April,  1871,  plaintiff  was  the  owner  of  a  promissory  ^^  -jo^vS^  ^^^^ 
note  made  by  defendant,  payable  to  the  order  of  Britton  &  Co.,  c  -oo — ^  Ax\x.  V 
for  $2,165.86;  which  was  indorsed  by  the  payees  and  transferred  V.^  p_^>--A  X^ 
to  plaintiff  before  maturity;  that  prior  to  its  maturity  the  ->^ •-^  «>--^  "^ 
payees  failed  and  made  an  assignment;  that  on  or  about  the  j^^ 

day  mentioned,  defendant,  for  the  purpose  of  deceiving  plain-  ^,^^^,^5^  JL*5lA  i 
tiff  and  inducing  him  to  surrender  up  the  note  for  a  less  sum  -^JiLaOwv..;  v»Ao/> 
than  was  due  thereon,  falsely  and  fraudulently  represented  that  >^iA_<kA,^.  ^,^J~«»^o 
the  note  was  made  by  him  solely  for  the  accommodation  of  the  \'^^-^^^'-*^'-^<-  "^ 
payees,  he  receiving  no  consideration  whatever  therefor,   and  ^^^^^^-*-*-®^   ^^4 
that  all  moneys  paid  by  him  upon  the  note  would  be  an  entire     . 
loss,  whereas  the  note  was  in  fact  for  merchandise  sold  by  the  v>-.Oov*oi   o   -c^- 
payees  to  defendant,  and  that  he  received  full  value  for  the    -v^^^lv.. 
note.     That  plaintiff  relying  upon   said   representations,   and 
being  ignorant  of  the  facts,  was  induced  thereby  and  did  accept 
$582.70  less  than  the  amount  due,  and  surrendered  up  the  note. 

That  by  reason  of  the  premises  said  plaintiff  has  been  de- 


^  ^/Vw^    A-naA.- 


46  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

ceived  and  defrauded  by  said  defendant  out  of  said  sum  of 
$582.70,  and  has  sustained  damage  to  that  amount. 
,.  o^^NA^ftXAjo/^  .  Defendant's  answer  admitted  the  allegations  of  the  complaint 
>AO:^»-fiL  o-  \  as  to  the  making,  indorsement  and  transfer  of  the  note,  the 
L  v^a^x>«-si  <>yj,  \  failure  ^f  ^he  payees,  and  that  he  paid  the  sum  of  $1,600  in 
""^  ^"^J*^^  full  settlement  of  the  note,  which  was  surrendered  up  to  him. 
u^J^.  vs-^  ^^^  denied  all  the  other  allegations  of  the  complaint.     On  the 

fl,^.,«,.ji/vOi::  <iv- Hrial  plaintiff  moved  for  judgment  on  the  pleadings,  which  mo- 
\iXso«>-eWw/^^  •  tion  was  granted,  and  directed  a  verdict  for  the  balance  unpaid 
on  the  note,  to  which  defendant's  counsel  duly  excepted. 

Allen,  J. :  The  complaint  is  for  fraud,  and  not  upon  con- 
tract. Whetheil  the  facts  stated  constitute  a  cause  of  action 
is  not  material.  The  whole  frame-work  is  in  fraud,  and  the 
cause  of  action,  as  set  forth,  is  based  upon  the  false  and  fraudu- 
lent representations  of  the  defendant,  by  which  the  plaintiff 
was  induced  to  surrender  and  give  up  to  the  defendant  his 
promissory  note,  held  and  owned  by  the  plaintiff,  for  an  insuf- 
ficient consideration,  an  amount  considerably  less  than  its  face, 
by  reason  whereof,  as  alleged,  the  "plaintiff  has  been  deceived 
and  defrauded  out  of  said  sum  of  $582.70,  and  has  sustained 
damage  to  that  amount." 

The  theory  of  the  plaintiff  at  the  commencement  of  the  action, 
and  the  foundation  of  his  claim  as  formally  made  in  his  com- 
plaint, was,  that  a  surrender  of  the  note  upon  the  receipt  of  an 
agreed  sum,  less  than  the  amount  actually  due  in  satisfaction 
,for  the  full  sum,  was  equivalent  to  a  release  under  seal,  and 
effectually  discharged  the  debt.     In  that  view  he  could  only 
recover  by  impeaching  the  release  and  discharge,  for  fraud,  and 
he  framed  his  complaint  to  meet  the  case  in  that  form.     His 
whole  cause  of  action  rested  upon  the  alleged  fraud,  and  it  was 
an  entire  change  of  that  cause,  and  a  surprise  upon  the  defend- 
gjit^  when  this  view  was  ignored  by  the  counsel  and  the  court^ 
at^the  trial,  and  a  verdict  ordered  upon  a  denial  in  the  answer 
■^j    ofjthe  only  material  allegations  of  the  complaint.    We  are  not 
-   \  to  speculate  upon  the  question  whether  the  surrender  of  the 
•■^  o^^x^  rvv      note  did  discharge  the  obligation.     The  plaintiff  assumed  that 
--■^  '^  it  did,  and  brought  his  action  to  recover  for  the  fraud  by  which 

.^.^jfrv-^  p?iK^  -t^jjg  discharge  was  procured.    It  was  error  in  the  court  to  change 
1-^    cc>-^   the  form  of  the  action,  by  striking  out  or  treating  as  surplusage 
,4^..,,^.  the   principal   allegations — those   which   characterize   and   give 

form  to  the  action — because,  perchance,  there    may    be    facts 


'XXoc 


T]^^;3C 


Sec.  2.]  barnes  v.  quigley.  47 

stated  by  way  of  inducement  spelled  out,  which  would,  when 
put  in  proper  form,  have  sustained  an  action  of  assumpsit. 

The  defendant  was  called  upon  to  answer  the  allegations  of 
fraud,  and  not  to  resist  a  claim  to  recover  in  assumpsit.  The 
two  forms  of  actions  might  require  very  different  defences. 
This  is  not  the  ease  of  an  obligation  or  contract  fraudulently  in- 
curred, in  an  action  upon  which  the  fraudulent  acts  of  the 
obligor  or  promissor  are  averred,  which,  as  they  do  not  enter  in- 
to the  contract,  and  are  not  essential  to  the  cause  of  actiori,  may 
and  should  be  rejected  as  surplusage,  as  in  Graves  v.  Waito 
[59  N.  Y.  156],  recently  decided  by  this  court.     The  plaintiff 


was  not,  under  the  complaint,  entitled  to  a  verdict  and  judg- 
ment, as  in  an  action  upon  the  note.  The  defendant,  in  pre- 
paring his  answer  and  putting  in  his  defence,  was  as  uncon- 
scious of  any  necessity  of  stating  and  setting  up  any  defence 
he  might  have  to  the  note,  as  the  framer  of  the  complaint  was 
innocent  of  any  intent  to  make  a  case  for  a  recovery  upon  the 
note,  as  a  valid  and  subsisting  obligation.  While  the  Code  is 
liberal  in  disregarding  technical  defects  and  omissions  in  plead- 
ings, and  allowing  amendments,  it  does  not  permit  a  cause  of 
action_tobe~  changed,  either  because  the  plaintiff  fails  to  prove 
the  facts  necessary  to  sustain  it,  or  because  he  has  mistaken  his 
remedy,  and  the  force  and  effect  of  the  allegations  of  his  com- 
plaint. (Code,  §  173;  DeGraw  v.  Elmore,  50  N.  Y.,  1;  Ross  v. 
Mather,  51  id.,  108;  Elwood  v.  Gardner,  45  id.,  349.) 

The  judgment  must  be  reversed  and  a  new  trial  granted, 
costs  to  abide  the  event.  q 

All  concur  in  result.  \f^^  ^~^ 

Judgment  reversed. 


MILLER  V.  HALLOCK. 

9  Col.  551.     [1887.] 


Action  to  recover  the  contract  price  of  a  lot  of  wood  alleged  f  *-<'''>^~-  a*-'*^  ^ 
to  have  been  sold  and  delivered  to  the  defendant.  The  answer  ^'^"■"^''■^*^' •  ^\^ 
specifically  denied  each  allegation  of  the  complaint.  One  Sar- _.,j^.^^jt-  a^c  >j>»~»^ 
geant,  representing  himself  to  be  the  defendant 's  agent,  pre-  ^^^\'  ■  o^y»/vA ;  ^ 
tended  to  purchase  for  defendant  250  cords  of  wood  at  $2.50  o-As^^-^  ^^^t-v^^ 
per  cord  and  directed  plaintiff  to  ship  it  to  the  defendant.  Sar-  7*'*^  .  *^^  ^ 


48  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.   I. 

geant  was  not  the  defendant's  agent,  but  represented  himself  to 
the  latter  as  the  owner  of  the  wood  and  collected  the  purchase 
money  for  it.  At  the  close  of  the  evidence  the  court  non-suited 
the  plaintiff.* 

Beck,  C.  J. :  It  is  conceded  by  the  parties  to  this  cause  that 
the  man  Sargeant,  who  procured  the  shipment  of  the  wood  from 
the  plaintiff,  Miller,  to  the  defendant,  Hallock,  was  a  swindler, 
and  that  both  plaintiff  and  defendant  acted  in  good  faith. 
Plaintiff's  counsel  contends  that  the  plaintiff  is  entitled  to  com- 
pensation from  Hallock  for  his  wood,  because  it  was  neither 
sold  nor  delivered  to  Sargeant,  but  shipped  to,  received  by,  and 
converted  to  the  use  of  the  said  defendant.  In  support  of  this 
theory,  counsel  cite  the  following  cases,  which  are  clearly  anala- 
gous  to  this  case,  so  far  as  the  facts  are  concerned,  and  which 
seem  to  sustain  the  rule  of  liability  contended  for.  Hamet  v. 
Letcher,  37  Ohio  St.  356 ;  Barker  v.  Dinsmore,  72  Pa.  St.  427 ; 
Klein  v.  Seibold,  89  111.  540;  Barnard  v.  Campbell,  55  N.  Y. 
457;  Moody  v.  Blake,  117  Mass.  23. 

The  theory  of  the  defense,  however,  is  unanswerable  so  far  as 
the  present  action  is  concerned.  It  is  that  the  complaint  counts 
upon  a  contract  for  the  sale_of  the  wood,  alleged  to  have  been 
entered  into  between  the  plaintiff  and  the  defendant,  whereas 
the  proof  wholly  failed  to  sustain  the  allegation.  The  cause  and 
character  of  the  cases  above  cited  were  wholly  different  from 
the  action  instituted  in  this  case.  The  former  were  actions  to 
recover  back  the  specific  property  which  had  been  fraudulently 
obtained  from  the  owners,  or,  where  the  property  itself  could 
not  be  recovered,  to  recover  the  value  thereof  from  the  persons 
who  had  converted  it  to  their  own  uses.  Here  the  action 
brought  is  upon  an  alleged  contract  entered  into  by  the  parties 
specifying  the  quantity  of  wood  to  be  delivered  by  the  plain- 
tiff, and  the  price  to  be  paid  therefor  by  the  defendant.  No 
\^,,A>^  such  contract  having  been  made,  of  course  it  could  not  be 
^  oc*v  proved,  and  the  court  was  compelled  to  grant  a  non-suit.  There 
^  ^^^.*^^JLi.  w^  was  a  fatal  variance  between  the  allegations  of  the  complaint 
^.■,<>rc-ov^AA,^*^  and  the  proofs.  In  such  a  case  it  is  not  enough  that  the  evi- 
^'*''^'*^  "^.  dence  of  the  plaintiff  show  a  case  that  calls  for  some  relief. 
,^^ix,.^jC0.jS^^  '^o  entitle  him  to  judgment  he  must  show  himself  entitled  to  the 
relief  called  for  by  the  facts  stated  in  his  complaint.    As  stated 


^^J"w^*«^J>- 


♦The  statement  has  been  condensed. 


Sec.  2.]  MILLER    V.    HALLOCK.  49 

by  the  supreme  court  of  California,  in  Mondran  v.  Goux,  51 
Cal.  151:     "The  rule  is  well  settled  that  the  plaintiff  must  re-*^ 
cover,  if  at  all,  upon  the  cause  of  action  set  out  in  his  complaint  / 
and  not  upon  some  other  which    may    be    developed    by    the/ 
proofs. ' ' 

A  cause  of  action  is  a  wrong  committed  or  threatened.  It  may 
consist  of  the  wrongful  conversion  of  property,  or  of  the  non- 
performance of  an  agreement.  In  one  case  the  cause  of  action 
would  sound  in  tort,  the  other  in  contract ;  and,  while  the  relief 
sought  might  relate  to  the  same  subject-matter,  yet  proof  of 
facts  sufficient  to  sustain  the  action  for  the  tort,  would  be  in- 
sufficient to  sustain  the  action  for  the  non-performance  of  the 
agreement,  for  the  reason  that  the  probata  would  not  correspond 
with  the  allegata.  The  complaint  would  state  one  cause  of  ac- 
tion, every  material  averment  of  which  might  be  controverted 
and  put  in  issue  by  the  answer  of  the  defendant,  while  the  facts 
proved  would  be  foreign  to  the  issues  joined.  That  is  just  the 
case  here  presented.  The  complaint  states  a  cause  of  action 
arising  ex  contractu,  and  each  material  averment  thereof  has 
been  controverted  and  put  in  issue  by  the  answer  of  the  de- 
fendant, in  the  exercise  of  his  legal  rights.  The  proofs  intro- 
duced  and  offered  in  evidence  tended  to  establish  a  cause  of 
action' arising  ex  delicto.  "A  party  can  have  no  relief  beyond 
what  the  averments  of  his  pleadings  entitle  him  to."  The  alle- 
gations of  the  complaint,  the  evidence,  and  the  finding  should 
correspond  in  legal  intent.  Tucker  v.  Parks,  7  Colo.  62,  (1  Pac. 
427)  ;  Gregory  v.  Haworth,  25  Cal.  656. 
The  judgment  must  be  affirmed.  q 


ANDERSON  v.  CASE. 

28  Wis.  505.     [1871.] 

Lyon,  J. :  The  complaint  charges  that  the  defendants  unlaw-  ^  ^i^rv^-v-  ^  r^^j^ 
fully  seized  and  converted  to  their  own  use  certain  personal  \r*^  c.«-v^**>-~^ 
property  therein  described,  in  which  the  plaintiffs  have  an  in-  ^>'^  "^^^^^^ 
terest  by  virtue  of  a  chattel  mortgage  thereon,  executed  by  one  ^'i^^^^l^,^^  a^ 
J.  D.  Downer,  to  secure  his  indebtedness  to  them,  to  the  amount  A^,.,...»,OcY»-«y-' 
of  $155.75.  The  answer  of  the  defendants  admit  the  taking  of 
4 


50  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

the  property,  and  denies  all  the  other  allegations  of  the  com- 
plaint.    *     *     * 

The  testimony  tends  to  show  that  the  defendants  shipped  and 
sold  the  hops  with  the  consent  and  by  the  request  of  the  plain- 
tiffs. 

Before  the  public  sale  of  the  balance  of  the  property,  tl^e 
parties  entered  into  a  written  agreement  relative  to  the  pro- 
ceeds of  the  sale  thereof,  which  the  circuit  court  held  operated 
as  a  waiver  of  the  alleged  tortious  taking  of  the  property  af- 
fected by  it.  This  ruling  of  the  circuit  court,  being  in  favor  of 
the  respondents,  is  not  before  us  for  review  on  this  appeal. 

The  circuit  judge  instructed  the  jury,  in  substance,  that  if, 
after  the  defendants  seized  the  hops,  the  plaintiff  consented  that 
they  might  ship  and  sell  them,  such  a  consent  was  a  waiver  of 
the  wrongful  taking,  and  the  only  remedy  of  the  plaintiffs  in 
such  case  would  be  an  action  for  money  had  and  received  to  re- 
cover the  proceeds  of  the  sale  thereof.  But  this  instruction  was 
given  with  the  following  qualification:  "The  force  and  effect 
of  such  consent,  if  any  was  given,  would  depend  very  much 
upon  the  plaintiffs'  understanding  of  the  defendants'  claim. 
If  they  understood  that  the  defendants  considered  their  claim 
to  be  subject  and  secondary  to  the  plaintiffs'  claim,  and  that 
the  proceeds,  by  whomsoever  collected,  would  be  divided  ac- 
cording to  such  respective  rights,  a  consent  under  such  circum- 
[stances  ought  not  to  be  a  waiver  of  the  wrongful  taking," 

The  plaintiffs  had  a  verdict  and  judgment  for  the  amount  of 
their  mortgaged  property ;  and  the  defendants  appeal  from  such 
judgment. 

The  action  is  for  the  unlawful  conversion  of  the  property  de- 
scribed in  the  complaint.  Before  the  adoption  of  the  code,  it 
would  have  been  an  action  of  trover.  If  the  plaintiffs  consented 
that  the_defendants  should  ship  and  sell  the  hops^  then  clearly 
there^jwas  no  conversion,  of  the  hops  by  the  defendants,  and  no 
action  of  trover  can  be  maintained  therefor.  The  circuit  judge 
so  instructed  the  jury,  and  instructed  them  correctly.  But  the 
qualification  to  that  instruction  above  stated  we  think  is  er- 
roneous. We  are  unable  to  see  how  any  misunderstanding  be- 
tween the  parties  as  to  their  respective  rights  in  the  proceeds 
of  the  sale,  or  any  misapprehension  by  the  plaintiffs  of  the 
views  of  the  defendants  on  the  subject,  not  caused  by  the 
fraud  of  defendants,   can   effect  such  consent  or  weaken  the 


Sec.  2.] 


ANDERSON    V.    CASE. 


51 


force  of  it.     If  the  plaintiffs  gave  such  consent,  and  it  was  im-  \ 
portant  to  them  to  know,  before  doing  so,  what  the  views  of  the  1 
defendants  were,  as  to  which  mortgage  had  priority,  and  as  to  i 
which  party  was  entitled  to  be  first  paid  out  of  the  proceeds 
of  the  sale,  they  shouldjiaye  ascertained,  before  consenting  to 
the  sale^  what_those  views  were.     And    it    cannot    weaken    or 
change  the  legal  effect  of  such  consent  (the  defendants  being 
guilty  of  no  fraud),  if  such  consent  was  given  without  knowl- 
edge of  the  views  of  the  defendants  in  that  behalf,  or  under  a 
misapprehension  of  those  views.    In  either  case  it  must  be  held 
that  the  consent  of  the  plaintiffs  to  the  sale,  if  given^  operated 
as  a  waiver  of  the  alleged  tortj  and  in  such  case  there  could 
not  have  been  a  wrongful  conversion  of  the  hops. 

It  is  very  evident  that  this  objectionable  instruction  may  have 
misled  the  jury.  The  jury  may  have  found  that  the  plaintiffs 
consented  to  the  sale,  and  yet,  under  this  instruction,  if  they 
also  found  that  the  plaintiffs  gave  such  consent  supposing  that 
the  defendants  conceded  the  priority  of  their  mortgage,  the  ver- 
dict must  necessarily  have  been  for  the  plaintiffs. 

The  plaintiff's  contend,  however,  that  although  they  have 
failed  to  establish  their  right  to  recover  in  this  form  of  action 
for  the  conversion  of  the  property,  they  have  proved  their  right 
to  recover  the  proceeds  of  the  sale  thereof  in  an  action  for 
money  had  and  received,  and  that  therefore  the  verdict  and  the 
judgment  should  not  be  disturbed. 

The  rule  on  this  subject  is,  that  where  the  case  has  been  tried : 
on  the  merits  and  substantial  justice  done  between  the  parties,' 
the  verdict  will  not  be  set  aside  upon  a  question  of  form  only,' 
or  upon  some  merely  technical  objection  to  the  form  of  the. 
action.  3  Graham  and  Waterman  on  New  Trials,  chap.  XIV, 
sec.  IX,  and  cases  cited. 

We  think  that  an  application  of  this  rule  to  the  present  case 
will  not  save  this  verdict  andjudgment.  The  distinction  be- 
tween an  action  for  the  wrongful  conversion  of  property,  and 
an  action  for  money  had  and  received^is  not  merely  technical 

The  former  is  an  action  ex 
execution 


or  formal,  but  is  a  substantial  one. 


delicto,  the  latter  ex  contractu.  In  the  one  execution  goes 
against  the  body,  in  the  other,  against  the  property  only,  of  the 
defendant.  The  defendants  in  this  action  are  liable  to  be  im- 
prisoned by  virtue  of  an  execution  issued  upon  the  judgment 


Xa-»-^ 


52  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

against  them,  while  they  would  not  be  so  liable  were  this  an 
action  for  money  had  and  received. 

It  is  believed  that  no  case  can  be  found  which  attempts  to 
ignore  this  vital  distinction  between  those  actions,  or  to  deal 
with  it  as  merely  a  formal  or  a  technical  matter.  Certainly  the 
learned  counsel  for  the  plaintiffs  has  not  referred  us  to  such  a 
case. 

We  find  no  other  error  in  the  instructions  which  were  given 
to  the  jury  by  the  circuit  judge.  But  for  the  error  aforesaid, 
we  think  that  there  should  be  a  new  trial. 

By  the  court:  Judgment  reversed,  and  a  venire  de  novo 
awarded.  ^     4^, 


GALVIN  V.  MAC  MINING  CO. 

14  Man.  508.     [189L] 

»-'->*-o  Action  by  Patrick  Galvin  against  the  Mac  Mining  &  Milling 

Co.,  to  recover  for  shares  of  stock  sold  to  defendant.     From  a 
judgment  for  the  plaintiff  the  defendant  appeals. 

Fer  Curiam.  In  this  action  plaintiff  alleges  sale  and  delivery 
by  him,  and  purchase  by  defendant,  of  7,468  shares  of  the  cap- 
ital stock  of  the  defendant  company,  of  the  reasonable  value  of 
"^^^^  $2,340.40,  but  that  defendant  has  failed  to  make  payment  there- 
for; wherefore  judgment  is  demanded  for  recovery  of  that 
sum.     *     *     * 

As  to  the  first  cause  of  action,  for  the  recovery  of  the  reason- 
able value  of  said  stock,  it  appears  that  the  plaintiff  relied  upon 
the  fact  that  defendant  had  tortiously  assumed,  held,  and  con- 
verted said  stock  to  his  own  use,  and  therefore  plaintiff  alleges 
purchase  thereof  by  defendant,  on  the  theory  that  he  could 
waive  the  tort,  and  sue  as  upon  contract  for  purchase.  Defend- 
ant specially  denied  every  allegation  of  the  plaintiff's  complaint 
relating  to  the  sale  and  purchase  of  said  stock.  It  was  de- 
veloped on  the  trial  that  said  stock  had  been  placed  in  the 
custody  of  defendant's  secretary,  with  an  assignment  indorsed 
thereon,  transferring  the  same  to  A.  McLain,  under  the  con- 
dition that  the  same,  with  other  stock,  might  be  purchased  by 
the  latter  on  or  before  a  certain  date  fixed,  on  payment  of  a 
certain  sum  per  share.     That,  such  arrangement    having   ex- 


Sec.  2.j  GALviN  V.  mac  mining  co.  53 

pired,  or  been  entirely  revoked,  leaving  plaintiff's  stock  in  the 
possession  of  the  secretary  of  said  company,  subject  to  plain- 
tiff's withdrawal  or  control,  the  plaintiff'  went  to  the  secretary 
of  defendant,  and  obtained  his  shares  of  stock,  and  indorsed 
thereon  an  assignment  thereof,  to  D.  Galvin,  and  left  the  same 
in  the  hands  of  the  said  secretary,  explaining  to  him  that  the 
plaintiff  was  about  to  borrow  a  sum  of  money  from  D.  Galvin, 
and  proposed  to  assign  and  place  said  stock  as  a  security  for 
such  loan.  That  he  expected  D.  Galvin  to  arrive  on  a  train, 
and  consummate  the  loan  and  delivery  of  the  security,  and,  in 
order  to  facilitate  the  transaction,  as  D.  Galvin  would  have  but 
a  few  moments  to  devote  thereto,  plaintiff  had  made  this  in- 
dorsement of  assignment  in  advance  of  consummating  such  loan. 
That,  a.s  appears  to  be  conceded,  the  loan  in  question  was  not 
consummated  at  all,  and  thereafter  plaintiff  called  upon  the 
secretary  of  the  defendant,  and  sought  to  obtain  possession  of 
his  shares  of  stock,  but  defendant's  secretary,  as  appears,  did 
not  deliver  the  same,  saying  there  w'ould  be  some  new  blank  cer- 
tificates of  stock  in  possession  of  the  company  in  a  few  days, 
and  that  when  the  same  arrived  he  would  issue  the  plaintiff  a 
new,  clean  certificate,  representing  his  shares,  in  lieu  of  the  old 
ones,  which  had  been  indorsed  by  the  assignments  above  men- 
tioned. Being  agreeable  to  that  suggestion,  it  appears  that  the 
plaintiff  left  his  stock  in  the  custody  of  the  secretary  for  some 
time;  and,  as  appears  from  the  testimony  of  plaintiff,  in  the 
meantime  said  secretary  personally  sought  to  purchase  said 
stock  from  the  plaintiff,  but  such  purchase  was  not  effected. 
That  after  said  certificates  of  stock  had  remained  in  the  pos- 
session of  said  secretary  for  some  time,  plaintiff  demanded  the 
delivery  thereof  to  him,  but  the  secretary  refused  to  deliver  the 
same  to  the  plaintiff,  saying:  "You  have  no  stock  in  this  com- 
pany." On  this  state  of  facts,  the  plaintiff  based  his  right  to 
recover  from  the  defendant  the  reasonable  value  of  said  stock; 
and  defendant  appears  to  have  undertaken  to  defend  and  jus- 
tify the  action  of  its  secretary  on  th.e  ground  that,  the  plaintiff 
having  made  said  indorsements  on  the  certificates  in  contempla- 
tion of  transferring  them  to  D.  Galvin  as  a  security  for  a  loan, 
the  secretary  was  justified  in  withholding  said  certificates  of 
stock  from  plaintiff  until  D.  Galvin  reassigned  them,  or  ordered 
their  delivery  to  the  plaintiff.  On  this  theory"  of  defense  the 
action  was  tried,  and  instructions  were  given  to  the  jury,  and 


54 


NATURE    AND    FORMS    OF    ACTIONS. 


[Chap.  I. 


c.o^^X«.A./^Ax^ 


the  jury  found  against  the  defendant,  in  effect  finding  that  its 
attempted  defense  or  justification  of  its  secretary's  action  was 
not  well  founded.  Considering  the  theory  of  defense,  and  the 
evidence  introduced  in  the  action,  we  think  the  verdict  of  the 
jury  is  well  supported.     *     ^ Jl^ 

The  pointjs  raised  by  the  appellant  that  there  is  a  fatalvari- 
ance  between  the  proof  and  the  allegations  of  the  complaint,  be- 
cause the  complaint  alleges  a  sale  of  personal  property  described, 
and  seeks  to  recover  the  reasonable  value  thereof,  but  the  proof 
shows  a  tortious  taking  and  conversion.  The  complaint  is  in  the 
nature  of  assumpsit  upon  contract  of  sale  and  purchase,  but  the_ 
proof  discloses  a  tortious  assumption,  detention,  and  unwar- 
ranted refusal  to  deliver  said  stock  to  plaintiff  on  his  demand 
therefor;  and  these  facts,  together  with  the  implication  which 
the  law  draws  therefrom,  are  relied  upon  to  support  the  com- 
plaint alleging  a  sale.  No  variance  can  be  maintained  on  such 
a  situation.  The  authorities  at  common  law,  and  those  also  re- 
lating to  code  procedure  and  remedies,  hold  that  a  declaration  in 
assumpsit  is  supported  by  proof  of  the  wrongful  taking  and, 
conversion  of  personal  property;  but  there  is  a  line  of  cases 
which  confines  the  right  of  election  to  waive  the  tort  and  sue 


and  recover  the  value  of  the  goods  converted  as  if  sold  to  the. 
wrongful  taker  to  cases  where  the_latter  had  himself  disposed 
ofthe_  property.  This  distinction  has  received  very  careful 
consideration  and  extended  discussion  by  courts  of  last  resort, 
and  we  think  the  great  weight  of  reason  and  authority — es- 
pecially of  decisions  under  the  reformed  procedure — disregard 
that  distinction  as  immaterial  in  cases  where  the  owner  of  the 
goods  sues  to  recover  the  reasonable  value  thereof,  on  the  very 
f)  roper  and  rightful  assumption  that  the  taker  proposed,  not 
to  take  the  same  without  compensation  to  the  owner,  but  to  pay 
him  the  reasonable  value  thereof.  If,  however,  the  action  was 
not  for  the  reasonable  value  alone,  but  to  recover  for  money 
had  and  received  to  the  use  of  the  owner  by  the  wrongful  taker 
through  the  sale  of  the  goods,  the  plaintiff  ought  certainly  to 
allege  and  prove  the  sale .  and  amount  received,  because  that 
shifts  the  measure  for  accounting  from  that  of  the  reasonable 
value  to  the  proceeds  actually  received  by  the  wrongful  taker 
through  the  sale  of  the  goods.  Bliss,  Code  PI.  2d.  Edition,  §§ 
13,  153.  Pom.  Rein.  &  Rem.  Rights,  §§  567-573  and  cases  cited. 
It  is  also  urged  by  the  appellant  that  the  evidence  is  insuffi- 


Sec.  2.]  galvin  v,  mac  tuning  co.  55 

cient  to  support  the  verdict,  because  there  is  no  evidence  show-  "^^^iiir^^JS*^ 
ing  a  sale  by  defendant  of  the  property  converted.  This  not  0^^  >^  wa« 
being  an  action  for  money  had  and  received  by  the  defendant  Vvj^a-^  :\x^ 
through  the  sale  of  goods  wrongfully  taken  from  the  plaintiff,  ^  Oo-^  ^^-^^ 
and  it  not  being  necessary  to  allege  a  sale,  the  point  that  the  r^.„sTi\ 

verdict  is  not  supported  because  of  want  of  proof  of  sale  is  not  ^  pOuxJv^- 
available  in  this  action,  for  the  reasons  just  shown.     *     *     * 

Judgment  affirmed. 


/HUSTON  V.  TYLER. 

140  Mo.  252.      \1897.\ 

Sherwood,  J.:    Action  for  the  sum  of  $2,500.     The  nature  ^v^^,^^^^.  ^„,^a, 

of  the  action  best  appears  from  the  petition,  which,  omitting  ,^^  ,i>.x»oj^ 

caption,  etc.,  is  the  following:  ^..w•— -v>^ i*'«vv 

"That  the  defendant  was  at  the  time  hereinafter  mentioned,  ^  *M-  '^  ^ 

and  now  is  engaged  at  the  said  city  of  St.  Joseph,  in  the  busi-  ^^^^^^^'*^**-^ 

ness  of  obtaining  loans  of  money  for  others  on  their  promissory  ^      ^^^^^^     .^^ 

notes,  and  that  the  plaintiff  well  knew  him  to  be  engaged  in  ^ 


said  business ;  that  the  defendant  at  said  city,  on  the  8th  day  of  ^  ^  '\ 
April  1892,  prosecuting  the  basiness  aforesaid*,  entered  into  a  vv.,,^Jrouv^  V>a, 
contract  and  agreement  with  the  plaintiff  by  which  the  latter  yyvvj^-A ,  v.fNA/«. 
agreed  to  loan  twenty-five  hundred  dollars  upon  the  promissory- 
note  of  the  following  parties,  to-wit,  Thos.  M.  Smith,  Pat  Cur- 
tin,  Phillip  Weckerlin,  and  Jane  E.  Smith,  which  said  note  the 
defendant  undertook  and  agreed  to  procure  and  deliver  to  the 
plaintiff;  that  thereafter  the  defendant  presented  and  delivered 
to  the  plaintiff  a  promissory  note  for  the  sum  of  twenty-five 
hundred  dollars,  purporting  to  be  signed  by  all  of  said  par- 
ties, and  represented  to  the  plaintiff  that  it  was  the  note  agreed 
upon  between  them;  that  plaintiff  believed  defendant's  repre- 
sentation to  be  true,  and  relying  thereon  and  being  induced 
thereby,  he  loaned  the  sum  of  twenty-five  hundred  dollars  upon 
said  note  and  delivered  said  sum  to  the  defendant  and  received 
said  note;  that  the  said  note  was  not  in  fact  signed  by  any  of 
the  parties  whose  names  appear  signed  thereto,  except  Thomas 
M.  Smith;  that  on  the  contrary,  the  signatures  of  all  the  other 
parties  to  said  note  were  forged  thereto;  that  the  said  Thomas 


56  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

Smith  was  at  all  times  herein  mentioned  and  is  now  insolvent; 
that  payment  of  said  note  has  been  demanded  of  said  Smith, 
and  all  the  other  parties  whose  names  appear  signed  thereto, 
and  payment  has  been  refused;  that  no  part  of  the  said  note, 
principal  or  interest,  has  been  paid;  that  the  plaintiff  has  ten- 
dered the  said  note  to  defendant,  and  has  demanded  of  him 
payment  of  said  sum  of  twenty-five  hundred  dollars,  with  inter- 
est thereon;  which  has  been  refused  by  the  defendant;  that  the 
plaintiff  now  tenders  said  note  into  court  for  the  use  of  the 
defendant.  Wherefore  the  plaintiff  prays  judgment  against 
the  defendant  for  the  sum  of  twenty-five  hundred  dollars,  with 
interest  thereon  at  the  rate  of  six  per  cent  per  annum  from  the 
eighth  day  of  April,  1892." 

The  answer  of  defendant  consisted,  in  substance,  of  a  gen- 
eral denial.     *     *     * 

The  evidence  on  the  part  of  the  plaintiff  himself  tended  to 
show  that  while  he  was  in  his  office  on  the  sixth  or  seventh  of 
April,  1892,  he  received  a  message  over  the  telephone  from  de- 
fendant asking  if  he  would  loan  $2,500  for  three  montlis  on 
the  following  names:  Thomas  M.  Smith,  Pat  Curtin,  Philip 
Weckerlin,  and  Jane  Smith.  Defendant  being  asked  by  plain- 
tiff if  they  (the  above  named  parties)  would  make  a  good  note, 
replied  it  would  be  Al  or  gilt  edged,  or  something  of  that  kind, 
but  that  plaintiff  had  better  investigate  the  solvency  for  himself. 
On  investigating  plaintiff  ascertained  that  though  Thomas 
Smith  had  nothing,  yet  the  others  were  large  property  owners, 
etc.  Plaintiff  then  called  defendant  by  telephone,  and  told  him 
he  would  take  the  loan,  when  defendant  replied,  "I  will  get 
up  the  note,  or  get  the  note  and  bring  it  to  you." 

On  the  morning  the  note  bears  date,  defendant  came  into 
plaintiff's  office,  and  said,  "Here's  your  note,  or  the  note;  I 
want  my  money,  or  the  money."  That  thereupon  plaintiff 
asked  to  whom  the  check  for  the  amount  was  to  be  given,  when 
defendant  replied  :  ' '  Myself ;  it  is  to  be  in  my  name ; ' '  where- 
upon plaintiff  said,  "That  is  all  right;  you  are  good  to  me  for 
the  amount,"  and  drew  a  check  for  $2,500,  payable  to  defend- 
ant, handed  it  to  him  and  received  in  return  from  defendant  a 
note  for  a  like  sum,  due  in  three  months,  on  which  note  were 
the  names  which  had  been  mentioned  over  the  telephone.  That 
defendant  did  not  state  to  plaintiff  for  whom  he  was  obtaining 
the  money.     But  plaintiff  did  not  suppose  the  defendant  was 


Sec.  2.] 


HUSTON   V.   TYLER. 


57 


getting  the  money  for  himself,  but  supposed  defendant  was  get- 
ting the  money  for  those  whose  names  were  on  the  note. 

When  the  note  fell  due  it  was  not  met,  and  it  was  ascertained 
that  the  names  of  all  on  it  but  Thomas  Smith's  were  forgeries; 
and  it  was  admitted  at  the  trial  on  the  part  of  plaintiff  that 
in  all  of  defendant's  transactions  connected  with  the  note,  de- 
fendant acted  in  good  faith,  and  without  knowledge  of  the  non- 
genuineness  of  the  signatures  aforesaid.     *     *     * 

It  further  appeared  in  evidence  that  defendant,  on  receipt 
of  the  check,  took  out  $150  for  his  commission,  and  turned 
over,  by  check,  the  residue  to  Tom  Smith. 

The  foregoing  is  a  sufficient  statement  of  the  evidence  for 
the  purposes  of  the  present  occasion.  On  the  conclusion  of  the 
testimony,  the  court  gave  the  jury  a  peremptory  instruction  to 
find  for  the  plaintiff  the  amount  of  the  note  with  interest  at  six 
per  cent  from  its  date,  and  a  verdict  in  accordance  with  this 
instruction  was  returned. 

1.     Chitty  says:    "An  inducement  in  an  action  of  assumpsit 
is  in  the  nature  of  a  preamble,  stating  the  circumstances  under 
which  the  contract  was  made,  or  to  which  the  consideration  has 
reference."     1  Chitty  PI.   (16th  Am.  Ed.)   *296;  Ibid,  *111  et 
seq;  Bliss,  Code  PI.  (3d  ed.)  sees.  149,  150;  Andrews  Stephens' 
PL,  sec.  53;  5  Am.  &  Eng.  Enc.  of    Law,    355.     Under    these 
authorities  it  will  readily  be  seen  that  the  "matter  of  induce- 
ment" in  this  instance  begins  at  the  initial  statement  as  quoted 
from  the  petition,  and  ends  at  the  asterisk  as  marked  after  the 
word  "aforesaid."     The  "gist"  of  the  action  manifestly  lies /^  cy^  ^^ 
in  the  allegation  that  defendant  undertook  and  agreed  to  pro-^  >  s^Xi^^^-vA^^ .  »^ 
cure  and  deliver  to  plaintiff  a  promissory  note  of  certain  named    |  'Vuo*^.  ^--j    ^ 
parties,  for  the  sum  of  $2,500.    Were  this  an  action  at  common   il  vo^*-^  «i^  !^ 
law  it  would  be  denominated  "express  assumpsit."     1  Wait's 
Act.    and   Def.,   373.     And   notwithstanding   the   common   law 
forms  have  been  abolished,   their  substance   in   great  part  re- 
malns7~and  this  is  still  true  of  the  distinction  between  mere 
matter  of  inducement  and  the  "gist"  of  the  action  or  matter 
of  substance.     Bliss,  Code  PL,  sec.  149. 

So  that  from  these  considerations  it  must  be  evident  that 
plaintiff's  contention  that  "the  petition  in  this  case  is  not  based 
upon  an  agreement  by  Tyler  to  procure  a  note  signed  by  the 
parties  named,"  and  that  "the  agreement  is  set  out  by  way  of 
inducement  in  connection  with  all  the  other  facts  connected  with 


58 


NATURE    AND    FORMS    OF    ACTIONS. 


[ClIAP.    I.- 


"T^- 


the  transaction,"  cannot  prevail.  And  even  if  it  be  conceded 
that  the  words  from  the  asterisk  downwards,  constitute  only 
matter  of  inducement,  still  plaintiff  is  in  no  better  plight,  be- 
cause the  allegation  is  certainly  material  to  plaintiff's  recovery; 
and  on  this  point  Chitty  says :  ' '  In  general,  however,  every  al- 
legation  in  any  inducement,  which  is  material  and  not  impertin- 
ent and  foreign  to  the  cause,  and  which  consequently  cannot  be 
rejected  as  surplusage,  must  be  proved  as  alleged,  and  a  vari- 
ance would  be  fatal."     I  Chitty,  PL  *299. 

We  regard,  however,  the  allegation  already  noted,  not  as  mere 
matter  of  inducepient,  but  as  the  gravamen  of  plaintiff's  action, 
and  without  proof  of  it,  and  there  was  none,  he  was  not  en- 
titled to  recover  in  this  case. 

2.  Plaintiff  having  elected  to  sue  on  an  alleged  express  con- 
tract on  the  part  of  defendant  to  procure  and  deliver  to  plain- 
tiff' a  promissory  note  for  $2,500,  etc.,  cannot  enlarge  his  cause 
and  basis  of  action  by  resorting  to  the  general  words  of  his  pe- 
tition, but  will  be  confined  to  the  act  specifically  assigned  in 
his  petition  as  his  ground  of  action.  Schneider  v.  Kailroad, 
75  Mo.  295;  Waldhier  v.  Railroad,  71  Mo.  514;  Fuchs  v.  City,  34 
S,  W.  loc.  eit.  513.  And  plaintiff  having  declared  upon  what_ 
is  an  express  contract  or  warranty  as  to  the  genuineness  of  cer- 
tain signatures,  he  was  thereby  precluded  fromrelying  on  an 


/-o^J^jt^aa-o  ,  "^     implied  warranty  to  the  same    effect.     International    Co.    v. 


Smith,  17  Mo.  App.  264;  Deming  v.  Foster,  42  N.  H.  175;  Mc- 
Graw  V.  Fletcher,  35  Mich.  104;  Baldwin  v.  Van  Deusen,  37 
N.  Y.  487. 

Nothing  is  better  settled  in  this  State  than  that  a  party  will 
not  be  permitted  to  sue  upon  one  cause  of  action  and  recover 
upon  another.  Clements  v.  Yates,  69  Mo.  623,  and  cases  cited; 
Carson  v.  Cummings,  lb.  325;  Sumner  v.  Rogers,  90  Mo.  324. 
In  the  last  case  cited,  it  was  ruled  that  though  our  code  speaks 
of  every  suit  brought  thereunder  as  a  "civil  action,"  yet  this 
extends  only  to  the  form  of  the  action,  and  not  to  its  sub- 
stance. On  a  subsequent  occasion  it  was  ascertained  that  the 
same  view  had  been  expressed  in  a  more  amplified  way  by  the 
court  of  appeals  of  New  York,  to  the  effect  that  notwithstand- 
ing a  party  may  rnoye  to  have  the  pleading  of  his  adversary 
made  more  definite  and  certain,  yet  he  is  not  bound  to  do  this : 
that  is  the  primary  duty  of  the  party  drawing  the  pleading, 
and  the  latter  cannot  cast  that  onus  on  his  opponent  by  failing 


Sec.  2.]  huston  v.  tyler.  59 

to  perform  his  own  duty  in  the  first  instance,  and  that  duty- 
consists  in  expressing  his  meaning  clearly  and  unmistakably. 
Snyder  v.  Free,  114  Mo.  360;  Clark  v.  Dillon,  97  N.  Y.  370.  See, 
also.  Young  v.  Schofield,  34  S.  W.  Rep.  loe.  cit.  499. 

In  short,  the  cases  above  cited  recognize  the  doctrine  that 
the  "fundamental  requirements''  of  good  pleading  are  and 
must  remain  the  same,  whether  under  code  or  at  common  law; 
that  is  to  say,  a  pleading  must  be  so  drawn  as  to  tender  a  defi- 
nite issue  or  issues,  and  not  have  the  adversary  to  grope  in  the 
dark  as  to  what  the  meaning  of  the  pleading  is ;  "  this  is  no  more 
allowable  now  than  formerly."  Clark  v.  Dillon,  supra.  In  the 
case  at  bar,  therefore,  it  was  misleading  in  pleading  plaintifil's 
cause  of  action  to  plead  an  express  contract,  and  then  on  the 


trial  rely  upon  that  as  a  matter  of  inducement,  and  also  on  "all 
the  other  facts  connected  with  the  transaction,"  whether  such 
other  facts  accorded  with  the  theory  of  an  express  contract  or 
warranty  or  not.     *     *     * 

Because  of  the  errors  mentioned,  we  reverse  the  judgment 
and  remand  the  cause.    All  concur. 


FAERON  V.  SHERWOOD 

17  N.  Y.  227.     [1858.] 

Appeal  from  the  superior  court  of  Buffalo.     The  complaint   ^Cl.4>.;n/^ 
was :     ' '  First.     That  the  defendant  is  indebted  to  the  plaintiff  ni.»j<Jk>-^  ^^ 
in  the  sum  of  fourteen  hundred  and  twenty-nine  and  54/100  jviL..<.jToo^.^v.  v 
dollars,  for  work,  labor  and  services  done  and  performed  for  3yu^„ot^.^»A    <>-- 
the  defendant,  at  his  special  instance  and  request,  at  the  city  (x>^y>-'^^^'VA^^-»^ 
of  Buff'alo,  by  the  plaintiff'  and  his  servants  and    agents,    at  L.^s^  sj^r-vv-vV. 
divers  times  between  the  8th  day  of  May,  1852,  and  the  com-  ^.j^.^^^    ^^^^^ 
mencement  of  this  action,  in  and    about    quarrying,    dressing,  dLs»-V.    <\  \r^ 
preparing,  delivering,  putting  together    and    erecting    certain    h^jj,,^    i,^ 
building  stones,  in  and  about  defendant's    dwelling    on    Main 
street,  in  said  city  of  Buffalo,  and  that  said  work,  labor  and 
services  were  reasonably  worth  the  sum  of  fourteen  hundred 
and  seventy-nine  and  54/100  dollars;  and  that    the    defendant 
has  not  paid  the  plaintiff  the  said  sum  nor  any  part  thereof, 
but  has  hitherto  wholly  neglected  and  refused  so  to  do.    Second. 
And,  for  a  second  cause  of  action  against  the  defendant,  the 


■60 


NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.   I. 


plaintiff  says  that  the  defendant  is  indebted  to  him  in  the  sum 
of  thirty-eight  and  4/100  dollars,  for  certain  dressed  building 
stones,  before  the  commencement  of  this  action  sold  and  deliv- 
ered by  the  plaintiff  to  the  defendant,  at  the  city  of  Buffalo,  at 
defendant's  special  instance  and  request;  that  the  said  building 
stones  were  reasonably  worth  the  sum  of  thirty-eight  and  4/100 
dollars;  and  that  the  defendant  has  not  paid  the  plaintiff  the 
said  sum,  or  any  part  thereof ;  but  has  hitherto  wholly  neglected 
and  refused  so  to  do.  Wherefore  the  plaintiff  demands  judg- 
ment against  the  defendant  for  the  sum  of  fifteen  hundred  and 
seventeen  dollars  and  sixty-three  cents,  besides  the  costs  of  this 
action."  The  defendant,  by  his  answer,  denied  each  and  every 
allegation  of  the  complaint.  The  action  was  tried  before  a  ref- 
eree. Upon  the  trial,  the  plaintiff  produced  several  witnesses, 
who  proved  the  work,  labor,  and  materials  specified  in  a  bill  of 
particulars,  furnished  the  defendant,  of  the  plaintiff's  claim, 
and  the  value  of  the  different  items;  and  then  rested.  Where- 
upon the  defendant  proved  payment  of  $1,002,  and  then  proved 
and  read  in  evidence  a  special  contract  between  him  and  the 
plaintiff,  under  which  the  labor,  except  sixty-four  days'  labor, 
worth  $2  per  day,  and  altering  a  buttress,  worth  $6  was  done. 
Upon  the  proof  and  the  pleadings  the  case  was  submitted  to  the 
referee,  "the  defendant  then  and  there  insisting  that  the  plain- 
tiff could  not  recover,  but  for  the  extra  work,  except  upon  the 
special  contract,  which  he  had  neither  stated  in  the  complaint 
nor  proved;"  but  the  referee  overruled  the  objection;  to  which 
the  defendant  excepted.  The  referee  reported  in  favor  of  the 
plaintiff  for  $299.55.  Judgment  having  been  entered  on  the 
report,  the  defendant  appealed  to  the  general  term  of  the  su- 
perior court,  by  which  the  judgment  was  affirmed;  and  the  de- 
fendant thereupon  appealed  to  this  court. 

Strong,  J. :  The  first  point  made  by  the  counsel  for  the  ap- 
pellant is,  that  for  the  portion  of  the  work  and  labor  done  un- 
der the  special  contract,  the  remedy  of  the  plaintiff  was  upon 
that  contract;  and  that  he  was  not  entitled  to  recover  upon  the 
common  counts.  It  is  necessarily  assumed  in  support  of  this  po- 
sition that  the  contract  is  the  cause  of  action  for  that  work  and 
labor;  and  if  that  be  so,  the  position  is  correct;  that  cause  of 
action  not  being  stated  in  the  complaint,  and  the  objection  being 
taken  at  the  trial,  the  referee  erred  in  allowing  the  part  of  the 
plaintiff's  claim  in  question.    But  the  assumption  is  wholly  un- 


Sec.  2.] 


FARRON  V.   SHERWOOD, 


61 


warranted  in  the  case.  It  was  not  objected  at  the  trial  that  the 
contract  had  not  been  fully  performed  on  the  part  of  the  plain- 
tiff; no  question  was  raised,  and,  so  far  as  appears,  there  was 
no  ground  for  any  question  on  that  subject.  Hence  it  must  be 
deemed  that  the  plaintiff'  had  done  all  that  was  incumbent  on 
him  to  do,  and  that  nothing  remained  to  be  done  by  the  con- 
tract but  the  payment  of  the  stipulated  price  by  the  defendant. 
/The  case  is  therefore  within  the  settled  rule  that  where  there 
is  a  ST3ecial  agreement  and  the  plaintiff  has  performed  on  his 
part,  the  law  raises  a  duty  on  the  part  of  the  defendant  to  pay 


the  price  agreed  upon,  and  the  plaintiff  may  count  either  on 
this  implied  assumpsit  or  on  the  express  agreement.  A  new 
cause  of  action  upon  such  performance  arises  from  this  legal 
dut3%  in  like  manner  as  if  the  act  done  had  been  done  upon  a 
^neral  request  without  an  express  agreement.  (Lawes'  PL  5; 
Jewel  V.  Schroeppel,  4  Cow.  564;  Feeter  v.  Heath,  11  Wend, 
484;  Mead  v.  Degolyer,  16  id.  637,  638;  Clark  v.  Fairchild,  22 
id.  576.)  This  rule  is  not  affected  by  the  code;  the  plaintiff 
might,  as  he  has  done,  rest  his  action  on  the  legal  duty ;  and  his 
complaint  is  adapted  to  and  contains  every  necessary  element  of 
that  cause  of  action.  Ii^w^as  not  necessary  to  state  in  terms  a 
promise  to  pay;  it  was  sufficient  to  state  facts  showing  the  duty 
from  w^hjcjrthe  law  implies  a  promise;  that  complies  with  the 
requirement  that  facts  must  be  stated  constituting  the  cause 
of  action.     (Allen  v.  Patterson,  3  Seld.  476.) 

The  defendant  was  not  precluded  by  the  form  of  the  com- 
plaint from  setting  up  and  availing  himself  of  any  defence  he 
had  under  the  contract.  ^ 

Judgment  affirmed* 


All  the  judges  concurring. 


^^^K-X^/W. 


r>-s-. 


GREENTREE  v.  ROSENSTOCK. 

61  N.  Y.  583.      [1875.] 

Appeal  from  the  judgment  of  the  General  Term  of  the  Su- 
perior Court  of  the  City  of  New  York,  affirming  a  judgment 
in  favor  of  plaintiff  entered  upon  the  report  of  a  referee ;  and, 
also,  from  an  order  affirming  an  order  denying  a  motion  for  a 
new  trial  on  the  ground  of  newly  discovered  evidence. 
*  Accord,  Moore  v.  Gans,  113  Mo.  98. 


62 


NATURE    AND    FORMS    OF    ACTIONS. 


[Chap.  I. 


\3^ 


The  summ'oDs  in  the  action  was  for  relief.  The  complaint  set 
forth  that,  in  the  month  of  December,  1858,  one  Nathan  Hof- 
flin,  at  San  Francisco,  California,  appointed  the  defendant, 
who  then  resided  in  that  city,  agent  to  sell  for  him  certain  prop- 
erty in  California,  then  belonging  to  him,  and  to  collect  cer- 
^rva*«*v*>^  tain  claims  owing  to  him  from  persons  in  the  state,  and  that 
M^  (x^o-^^A^the  defendant  accepted  the  trnst  and  agreed  duly  to  account 
rut.N'WY^^A^,  to  Hofflin  for  the  proceeds  of  the  sales  and  collections  made 
by  him  as  such  agent.  It  was  further  alleged  that  the  de- 
fendant, as  such  agent,  had  received  for  the  said  Nathan 
Hofflin  the  sum  of  $4,153.75,  in  the  gold  coin  of  the  United 
States,  and  had  failed  to  account  for  the  same  to  Hofflin,  but 
had  converted  the  same  to  his  own  use.  That  the  said  Nathan 
Hofflin,  for  value,  assigned  his  claim  for  said  funds,  or  the 
proceeds  thereof,  to  the  plaintiff;  and  that,  though  requested 
by  the  plaintiff  since  the  assignment,  the  defendant  refused 
to  pay  him  the  gold  coin  or  its  proceeds,  and  that  by  reason 
thereof  he  had  sustained  damage,  etc. 

The  answer  admitted  the  defendant's  appointment  as  agent, 
and  the  receipt  by  him,  in  that  character,  of  the  money  set 
forth  in  the  complaint,  but  denied  the  assignment.     *     *     * 

DwiGHT,  C. :  The  appeal  from  the  order  denying  the  new 
trial  cannot  be  entertained  in  this  court. 

On  the  appeal  from  the  judgment,  the  defendant  claims 
that  the  referee  should  have  dismissed  the  complaint,  on  the 
ground  that,  as  the  summons  is  for  relief,  and,  according  to 
his  view,  the  action  is  in  tort  for  the  conversion  of  gold,  and 
the  claim  is  for  $10,000  damages,  consequent  on  the  tort,  the 
plaintiff  cannot  recover  on  contract  merely  for  a  debt  due. 

I   do   not  think  that  the   present  action  is  framed  in  tort. 


The   allegations   are   all  such  as  would  be   properly   made   if 


one  sought  to  recover_from  his  agent  on  an  accounting.  The 
V*-'^"  complaint  alleges  the  employment  of  the  defendant,  his  re- 
ceipt of  Hofflin 's  money,  the  failure  of  the  defendant  to  ac- 
count for  the  money  or  the  proceeds,  or  to  pay  the  same  to 
Hofflin,  and  his  refusal  to  pay  the  money  or  the  proceeds  to 
the  plaintiff,  though  requested  to  do  so.  These  allegations 
plainly  are  framed  on  the  view  that  the  defendant  was  bound 
tf)  make  over  not  specific  money,  but  only  to  give  that  or  its 
proceeds,  or  in  other  words,  simply  to  account,  in  his  character 
of   agent.     An   action   to   hold  him  upon   this  liability   is  an 


Sec.  2.]  greentree  v.  rosenstock.  63 

ordinary  action  upon  contract.     It  is  true  that,  in  connection 
with  these  statements,  it  is  asserted  that  the  defendant  "con- 
verted the  property  to  his  own  use."     This  is,  however,  merely 
surplusage.     Under  all  the  circumstances,  it  is  an  immaterial 
allegation.     It  is  a  mere  deduction  from  the  statement  of  fact, 
and  in  the  connection  in  which  it  is  used,  it  is  not  traversable. 
Conaughty  v.  Nichols    (42  N.  Y.,  83)    is  in  point.     The  com- 
plaint in  that  case  was  framed  on  the  theory  of  an  agency,  and  (,jiyju.vA:5Djiw  u^ 
there  were  sufficient  allegations  to  show  the  defendant's  duty*  (^^^y.^,^yji^,^^vA/*w'"v. 
to  account.     Then  there  followed  a  statement  that  the  defend- vw««^  lUx  XKx^SS-A. 
ant  refused  to  pay,  and  had  "converted  the  plaintiff's  prop-  "^  A>vAr^><^iU^^ 
erty  to  his  o-wti  use."     The  court  held  that  if  the  words  "con- 
verted the  same  to  his  own  use,"  had  been  omitted  there  would 
have  been  a  complete  cause  of   action   upon  contract.     These 
words  were  unnecessary  to  be  stated,  and  superfluous.     Their 
insertion,  accordingly,  had  no  effect  upon  the  cause  of  action, 
and  the  plaintiff  was  allowed  to   recover.     I  think  that  this 
case  was  rightly  decided,  though  it  has  met  with  some  criticism.. 

The  true  theory  of  that  case  is  that  the  words  as  there  used  or^  V>*>^5^,  «^  <^ 
were  a  mere  legal  conclusion,  drawn  by  the  pleader  from  the  '^^Sf^  ut-^^Aa*^ 
facts   which  he   had   averred.      The   pleader   had  stated   ^^^^^  ^^"^^^^^^^^ 
from  which  that  conclusion  did  not  logically  follow.     It  is  not 
legally  true  that  a  commission  merchant  who  has  sold  goods 
and  received  the   price   does,  by  retaining  the   price,   convert 
it  to  his  own  use,  so  as  to  make  him  liable  in  an  action  of 
trover.     (Walter  v.  Bennett,  16  N.  Y.,  250.)     Had  it  been  the 
correct   exposition  of  the   law  that   such  retention  is  truly  a 
conversion,   and   had  the   allegations   been   framed  on   such   a 
theory,  I  concede  that  the  plaintiff  could  not,  upon  the  author- 
ities,  recover  upon   proof  which  showed  the  defendant  to  be 
liable  upon   a  contract.      (Walter  v.  Bennett,   supra.)      That, 
however,   is  not  this  case.      Conaughty  v.  Nichols,   considered 
from  this  point  of  view,  is  perfectly  sound,  and  only  main- 
tains that  an  action  upon  a  contract  does  not  cease  to  be  ^^c^_T^^^^.^^„.^^^^j^'^ 
jjecause   it   contains  an   incorrect  legal  conclusion   having  _thG_  "^^y  y, .  ^,'  ^Y 
aspect  of  a  tort.     See  also  Ledwich  v.  McKim  (53  N.  Y.,  307- ^y.,^*^ 
316),  where  the  principle  in  Conaughty  v.  Nichols  is  approved.^ 

This  view  in  no  respect  conflicts  with  Ross  v.  Mather   (51^*-*^"^^  *^^ 
N.  Y.,  108).     That  was  an  entirely  different  case.     The  com-  '^^^^• 
plaint  in  that  case  contained  all  the  elements  of  a  complaint 
for  fraud.     The  averments  were  not  conclusions  of  law,  as  in 


64  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

the  allegations  of  conversion  in  Conaughty  v.  Nichols,  and  in 
the  case  at  bar,  but  statements  of  specific  facts.  There  was, 
among  other  things,  a  positive  averment  of  a  false  statement, 
and  of  knowledge,  on  the  part  of  the  defendant,  of  its  falsity, 
and  of  the  fact  that  the  purchaser  was  fraudulently  deceived. 
These  statements  were  absolutely  necessary  to  the  action,  con- 
sidered as  an  action  of  tort.  They  were  out  of  place  in  an 
action  on  the  contract.  The  court  held  that  the  plaintiff 
could  only  recover  on  the  theory  of  a  fraud.  A  case  so  dif- 
ferent in  its  facts  is  no  authority  for  overruling  Conaughty 
V.  Nichols.  The  cases  may  well  stand  together.  The  court,  in 
Ross  V.  Mather,  did  not  intend  to  go  counter  to  that  case 
(page  112).  It  also  holds  that  the  fact  that  the  summons  is 
for  relief  is  immaterial.  The  same  remark  must  be  made  as 
to  the  prayer  for  damages.  The  present  case  is  put  distinctly 
o^L**.  i^^^^^  on  the  ground  that  no  other  action  would  lie  against  the  de- 
^  qvo-  (ve-v*  fendant,  except  one  upon  contract.  (Walter  v.  Bennett,  16 
-•^^''^^  N.  Y.,  250;  Weymouth  v.  Boyer,  1  Ves.  Jr.,  416;  Harris  v. 
Schultz,  40  Barb.,  315.)  The  allegations  are  sufficient  to  sus- 
tain that  view,  and  the  statement  of  a  conversion  is  an  er- 
roneous legal  conclusion  from  the  facts  averred,  in  its  nature 
not  traversable,  and  doing  no  possible  harm  to  the  defendant. 

Judgment  affirmed. 

CARBONDALE    INVESTMENT    COMPANY   v.    BURDICK. 
67  Kan.  329.     [1903.] 

.^-w»i,>^«t«xu)  Pollock,  J. :  It  is  difficult  to  ascertain  the  exact  nature  and 
Le..Aj»A.  «<^^»^  scope  of  this  action.  It  was  brought  by  I.  D.  Burdick  and  H. 
^.^;vwv«'4Y^4y#^Ji  W.  Burdick  against  the  Carbondale  Investment  Company, 
iA*j»-»^  juto>  based  upon  the  following  facts:  The  investment  company  was 
'^'T^^'''^^  the  owner  of  an  80-acre  tract  of  land  near  the  city  of  Carbon- 
^j3L.^^  <rv-  dale,  upon  which  there  was  discovered  mineral  springs.  The 
,v.,-.a^  /^  investment  company  desired  to  sell  this  land,  and  plaintiffs 
ji«:MuU;  t^^>:  wishing  to  purchase  for  the  purpose  of  utilizing  these  springs, 
\^  i^s\s^y^sLK  developing  the  property,  and  platting  it  into  an  addition  to 
"  >^>^-*^  ^  the  city  of  Carbondale,  but  being  without  means  to  pay  for 
,wii>^  i/\  (JuU^.  the  same,  the  property  was  conveyed  to  the  plaintiffs  by  the 
investment   company   for  the   consideration    of  $4,672,   and   a 


Sec.  2.]  carbondale  in  v.  co.  v.  burdick.  65 

mortgage  to  secure  the  entire  purchase  price  was  taken  upon  the 
property,  under  an  agreement  conditioned,  among  other  things, 
that  plaintiffs  would  plat  the  property  into  lots,  blocks, 
streets,  alleys,  driveways,  etc.;  would  plant  shade  and  orna- 
mental trees,  beautify  the  grounds,  and  advertise  the  property 
for  sale;  would  refrain  from  fencing  the  land  or  converting  it 
into  a  farm;  and  that  the  investment  company  would  release 
any  lot  or  lots  sold  from  the  lien  of  the  mortgage  upon  pay- 
ment of  the  sum  of  $12  per  lot  containing  3,750  square  feet. 

It  is  alleged  in  the  petition  that  the  plaintiffs  took  possession 
of  the  property,  caused  a  plat  of  the  ground  to  be  prepared 
and  filed,  at  a  cost  of  $200;  planted  shade  trees,  and  orna- 
mented and  improved  the  ground  at  a  further  expense  of 
$1,500;  and  that  they  expended  the  further  sum  of  $500  in 
time  and  money  in  advertising  the  property  for  sale,  and  sold 
a  large  number  of  lots  to  divers  persons,  and  tendered  the 
investment  company  the  sum  of  $12  per  lot,  and  demanded  a 
release  of  such  lots  from  the  lien  of  the  mortgage,  which  de- 
mand was  refused  by  the  defendant.  That  defendant  wholly 
failed  and  refused  to  comply  with  its  contract,  to  release  the 
lots  when  sold. 

It  is  further  alleged,  as  follows:     "That  the  defendant  then  -^^jA.  ^^^.^^.^uai) 
wrongfully    undertook,    contrived    and    designed    to    wantonly,  tVj^  ^vs^^.^'Ouv^ri 
maliciously,  and  wrongfully  stop  the  sale  of  all  lots  whatever  xiAX.^-../-iS;>>/vAX^ 
by  plaintiffs,  and  prevent  them  from  realizing  any  sum  there-  'vo^'*-^'^^ '^^^»'"^**' 
from  to  pay  said  mortgage,  and  to  annoy,  obstruct  and  prevent  «»-'s^vjsj<.    xjS^^vaa. 
plaintiff's  from  performing  and  carrying  out  said  contract  on 
their  part,  and  to  deprive  plaintiffs  of  the  benefit  of  their  bar- 
gain, and  in  pursuance  of  said  wrongful  purpose  refused  the 
releases,  instituted  the  vexatious  and  unwarranted  suits,   and 
did  the  wrongful  acts  hereafter  alleged,  that  is  to  say:     At 
the  time  of  each  such  request  to  release  the  lots  so  sold  by  these 
plaintiff's  said  defendant,  in  direct  violation  of  its  agreement, 
and  when  these  plaintiffs  were  in  no  default,   refused  to  re- 
lease a  single  lot,  and  would  not  do  so  upon  proper,  timely, 
and  sufficient  tender,  and  the  defendant  from  that  time  con- 
tinuously has  refused  to  release  said  lots;  and  the  defendant 
having  accepted  and  received  the  first  year's  interest  on  the 
note  and  mortgage,  which  was  paid  three  days  after  the  time 
it  became  due,  the  defendant  and  its  officers  having  consented 
that  there  might  be  such  delay,  at  a  meeting  of  its  board  of 
5 


QQ  NATURE    AND    FORMS    OP    ACTIONS.  [ChAP.    I. 

directors  received  and  accepted  such  payment,  and  by  resolu- 
tion divided  such  payment  into  dividends  for  the  stockholders, 
and  then  at  the  same  meeting  directed  and  authorized  suit 
to  be  brought  against  these  plaintiffs  for  the  foreclosure  of 
the  said  mortgage,  and  immediately  thereafter,  about  April 
18,  1890,  in  pursuance  of  said  direction,  a  suit  for  the  fore- 
closure of  said  mortgage  was  instituted  against  these  plaintiffs 
on  the  ground  of  non-payment  of  said  interest  and  taxes  (the 
defendant  then  well  knowing  that  the  plaintiffs  had  previously 
paid  such  taxes),  and  said  suit  was  continued  in  court  until 
August,  1891,  and  the  defendant  was  finally  defeated  in  that 
suit  for  the  aforesaid  reasons." 

It  is  also  alleged  defendant  instituted  an  injunction  suit 
against  plaintiffs  to  restrain  plaintiffs  from  pasturing  the  prop- 
erty, which  suit  finally  terminated  in  favor  of  the  plaintiffs, 
all  of  which  damaged  the  plaintiff's  in  the  sum  of  $20,000.  To 
this  petition,  defendant  interposed,  by  way  of  answer,  a  gen- 
eral denial.  The  case  was  tried  to  the  court  and  a  jury,  the 
jury  returning  a  general  verdict  of  $10,-500,  together  with 
interest  amounting  to  $17,747.10;  also  answers  to  special  ques- 
tions submitted.     *     *     * 

Plaintiffs  having  remitted  the  interest,  judgment  was  en- 
tered on  the  verdict.     Defendant  bring  error. 

From  the  allegations    of    the    petition    it    is  evident  that  a 

cause  of  action  is  stated  for  the  breach  of  the  contract,  made 

3^.jcjf^between  the  parties.     It  is   also   apparent  the  pleader  placed 

much  reliance  upon  the  alleged  wanton,  wrongful,  malicious, 

and  premature  bringing  of  the  foreclosure  action.     No  motion 

or  demurrer  was  levelled  at  the  petition.     An  examination  of 

the  record  discloses  ample  evidence  to  support  a  judgment  of, 

C  V'^/^  «^-     damages,  in  some  amount,  for  breach  of  contract,  but  the  jury 

.^jj,  Juivw-  find  the   entire  damages  awarded  plaintiffs  to  have  been  sus- 

^^-•Sk*\*^^  tained  as  a  result  of  the  premature  bringing  of  the  foreclosure 

^'-ckIa^^vs-         action.    As  a  necessary  consequence,  all  damages  for  the  breach 

'~-V*^'\       of  the  express  covenants  of  the  contract  are  thus  eliminated 

V*''^'-*^^*'^*~'from    this    controversy,    and    the    entire    judgment    must    rest 

alone  upon  a  consideration  of  the  nature  of  the  cause  of  action 

for  the  wrong  alleged  to  have  been  sustained  by  plaintiffs  in 

the  premature  institution   and  prosecution  of  this  foreclosure 

action.     While,  by  provision  of  the   Civil   Code,  the  common 

law  forms  of  action  are  expressly  abolished,  yet  it  is  true  and 


Sec.  2.]  carbondale  inv.  co.  v.  burdick.  67 

ever  must  remain  true,  in  any  orderly  administration  of  jus- 
tice, that  the  precipe  nature  of  the  cause  of  action  must  be  de- 
termined  before  the  rules  of  law  applicable  thereto  can  be 
"ascertained  and  applied.  Any  other  method  of  procedure  must " 
of  necessity  lead  to  inextricable  confusion.  As  well,  and  with 
as  much  propriety,  might  a  physician  attempt  the  treatment 
of  a  patient,  without  a  diagnosis  and  knowledge  of  the  ailment 
from  which  the  patient  suffers.  As  was  held  by  the  court  in 
Grentner  v.  Fehrensehield,  64  Kan.,  764  (68  Pae.  619),  ''The 
plaintiff  must  frame  his  petition  upon  a  distinct  and  definite 
theory,  and  upon  that  theoiT  the  tacts  alleged  must  state  a 
good  cause  of  action.  If  the  petition  is  not  drawn  upon  a 
single  and  definite  theory,  or  there  is  such  a  confusion  of 
theories  alleged  that  the  court  cannot  determine  from  the  gen- 
eral scope  of  the  petition  upon  which  of  the  several  theories 
a  recovery  is  sought,  it  is  insufficient." 

What  legal  effect  may  be  given  the  allegations  in  reference 
to  the  foreclosure  action  ?    Do  they  form  a  part  of  the  cause  of 
action   for  breach   of  contract,   or  must  they  be  regarded   as 
introducing  a  separate   cause  of  action?     Counsel  for  the  re- 
spective parties  do  not  agree  upon  this  question.     The  theory  ^^^^  ^^,j,3S...-iiL-j 
of  counsel  for  plaintiff  in  error,  at  least  in  this  court,  is  that  ^^^..^x  ^*^  <:-*^ 
the  allegations  in  relation  to  the  premature  attempt  to  fore-  ^^^ijJ-.'^  U  V*^ 
close  the  mortgage  are  separate  and  apart  from  the  action  for  V^  ^^o.^,^Ai^->JS 
breach  of  the  contract,  and  must  be  regarded  as  an  action  tor  V  *^  -  oi^;xkj»-5C 
"slander  of  title."     We  are  not  inclined  to  adopt  this  theory 
as  to  the  nature  of  the  action.     Mr.  Newell,  in  his  work  on 
Slander  and  Libel  (2d  ed.,  p.  203),  defines  the  right  of  action 
for  slander  of   title  to  be   in  case  "anyone  who  falsely  and 
maliciously  defames  the  title  of  property,  either  real  or  per- 
sonal,   of    another,    and    thereby    causes   him    some    special   or 
pecuniary  damage  or  loss. ' '    As  defendant  at  all  times  conceded 
the  absolute  title  and  right  of  possession  of  the  property  in 
question  to  be  in  the  plaintiffs,  subject  to  the  lien  of  its  mort- 
gage, and  did  not  assert  to  the  contrary,  no  question  of  title 
01  the  defamation  of  plaintiff's  title  is  alleged  against  defend-  (> ^^J^,^  .  c*vx - 
ant.     The  theory  of  counsel  for  defendants  in  error  is,  the  pre-  %,^,.^^  t^^  vo- 
mature  bringing  of  the  foreclosure  action  constituted  a  breach  ^^^'^^  <..i^A*>^v- 
of  the  implied  terms  of  the  contract  between  the  parties,  and  ^'^^  ^  c«^3S^ 
hence  the  entire  action  is  one  for  damages  for  breach  of  con- 
tract.    But  as  the  right  to  a  timely  foreclosure  of  the  mort- 


68  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.   I. 

gage,  in  case  of  default  was  not  contracted  against,  and  as  a 
premature  attempt  at  foreclosure  could  not  have  been  antici- 
pated, the  contract  being  silent,  it  cannot  be  thought  the  ques- 
-  t*^  V*^ '  tion  of  a  foreclosure  of  the  mortgage  was  in  contemplation 
vu.o.>.^w^  of  the  parties_at^the  time  of  thelnaking  of  the  contract.  The 
:  vA -yiAX  cavN  -  refusaPof  the  defendant  to  execute  the  releases  for  the  lots 
■^  •  sold,  as  covenanted  in  the  contract,  and  as  found  by  the  jury 

from  the  evidence,  leonstitute  an  express  violation  of  the  con- 
tract, for  which  breach  of  the  contract,  if  damage  ensued,  a 
cause  of  action  accrued  to  plaintiffs,  but  such  damages  cannot 
be   enhanced  by  the  intent  with  which  defendant  committed 
the  breach.    In  Ice  Co.  v.  Wylie,  65  Kan.,  104  (68  Pac.  1087), 
it  is  said:     ''The  intent  with  which  the  contract  was  violated 
did  not  furnish  a  cause  of  action,  but  the  fact  of  the  breach, 
disassociated   from   the    reasons   for   it.     The   wilfulness   of   a 
party  in  refusing  to  carry  out  a  contract  does  not  in  any  way 
ohanpp  the  rule  of  damages.    It  is  the  same  whether  the  breach 
results  from  mistake,   accident,  or  inability  to  perform  it,  or 
whether    it   be   wilful    and    malicious."       3    Par.    Cont.,    166^ 
Stranahan  Co.  v.  Coit,  55  Ohio  St.,  398-407  (45  N.  E.  634). 
Therefore,  if  the  wanton,  malicious,  wilful,  and  premature 
^  vfc  V*^~«^  bringing  of  the  foreclosure  action  as  alleged  in  the  petition  is 
"^^^•^^"•^^Vrvo^o  perform  any  office  or  give  rise  to  any  cause  of  action  or 
'''I^A.v,-^    right  to  damages  in  this  case,  it  must  form  the  basis  of  an 
^  ^i^or^jue.  -  independent  right  of  action,  not  flowing  from  the  contract,  but 
»w,  disassociated  from  a  right  of  action  on  the  contract,  and  must 

be  governed  and  controlled  by  the  rules  of  law  applicable  to 
such  an  action.  From  a  consideration  of  the  allegations  of  the 
petition  we  conclude  the  pleader  had  in  mind  and  alleged,  or 
attempted  to  allege,  a  cause  of  action  for  the  "malicious  prose- 
cution of  a  civil  action."  The  jury  having  determined  the 
entire  damage  suffered  by  plaintiffs  to  have  been  occasioned 
by  the  premature  prosecution  of  this  foreclosure  action,  it 
only  remains  for  us  to  determine  whether  the  petition  alleges 
sufficient  facts  to  entitle  the  plaintiffs  to  a  recovery  for  such 
action,  and  whether  the  proofs  are  sufficient  to  support  the 
judgment  rendered.  Upon  this  theory  of  the  casek  is  con- 
tended the  allegation  of  damages  found  in  the  petition  Is  gen- 
eral, and  must  be  special.  In  this  state,  contrary  to  the  rule 
ill  many  jurisdictions,  an  action  may  be  maintained  for  the 
"malicious  prosecution  of  a  civil  action,"  where  the  defend- 


Sec.  2,]  carbondale  inv.  co.  v.  burdick.  69 

ant  in  such  prosecution  alleges  and  shows  he  has  sustained 
any  damage  over  and  above  the  taxable  costs  in  the  case. 
Marbourg  v.  Smith,  11  Kan.,  554;  19  A.  &  E.  Encycl.  L.  (2d 
ed.),  652.  The  facts  necessary  to  be  alleged  and  proven  in 
order  to  maintain  an  action  for  the  "malicious  prosecution  of 
a  civil  action"  are  the  same  as  those  required  to  sustain  an 
action  for  the  malicious  prosecution  of  a  criminal  case.  Wil- 
cox V.  McKenzie,  75  Ga.,  73.  In  this  case,  before  the  plaintiffs 
can  recover  for  the  malicious  prosecution  of  the  foreclosure 
action,  it  is  incumbent  upon  them  to  allege  and  prove  the 
prosecution  of  the  foreclosure  action  against  themp^without 
probable  caus^with  malicer^he  termination  of  such  action  in 
favor  of  plaintiffs,  anc^^heir  damages:  for  such  are  the  con- 
stituent elements  of  such  an  action.  Malone  v.  Murphy,  2 
Kan.,  54;  Marbourg  v.  Smith,  supra;  19  A.  &  E.  Encycl.  L. 
(2d  ed.),  652. 

Applying  these  principles  to  the  pleadings  and  evidence  ^(^^j^aaa.-  W'-©-^ 
in  the  case  at  bar,  it  is  very  evident  a  reversal  of  the  judg-  W'Ji^t^5.  ajJ^/^i^ 
ment  must  follow.  While  the  petition  alleges  the  foreclosure  oJJlxa*.  ^""^^ 
action  to  have  been  prematurely  brought,  and  malicious,  yet  &.  ovvo*^  c-«^A*>*-i 
there  is  no  averment  of  want  of  probable  cause,  and  there  is  ^5^  o<JC6«v^  ^*o 
an  entire  absence  of  proof  of  malice  and  want  of  probable  >vs.4Ji>-<-^^«>*-o 
cause  in  the  evidence.  "       V^^^^^^r*^^!^*^ ^ 

follows  the   judgment   must   be   reversed,    and   cause   re-    -.„       ^  „ 
manded  for  a  new  trial  in  accordance  with  this  opinion.     All  \,.,.,.osyOc  cv  aAAW 
the   justices   concurring.  c,«».jo>.^*.4_ . 

GARTNER  v.  CORWINE.    -^  ^-^^  V*^  "^"'^ 

57  Ohio  St.  246.    [1897.] 

Williams,  J. :    Suit  was  brought  by  Corwine  against  Gartner  o^jkIXa^jt-^ 
to  recover  damages  for  breach  of  warranty  in  the  sale  of  a  horse.  r*j»-«'<s-x>-*^  ^J*^ 
The  petition  alleges,  in  addition  to  the  warranty  and  its  breach,  ^^^^*^'^^f^,^,^j^ 
that  the  defendant  knew,  at  the  time  of  the  sale,  that  the  animal  ,^^/^|^J^J^^  uv  o^  A-*^ 
was  not  tvhat  it  was  warranted  to  be.     On  a  trial  of  the  issues 
joined  by  a  denial  of  the  warranty  and  its  breach,  and  of  the  ^j>_^    «,j-<t*  oJ 
defendant's  knowledge  that  the  warranty  was  false,  the  jury  iixa,,*^  -O^'-o^  ^ 
were  instructed,  in  substance,  that,  to  entitle  the  plaintiff  to  a  .^u^-w  X.^s-^^'^k  ^^ 
verdict  in  the  case,  it  was  necessary  for  him  to  prove,  by  a  pre-  "T*^^^^  r\  ^^ 


70  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

ponderance  of  the  evidence,  that  the  defendant  knew  the  war- 
ranty was  false  in  some  material  particular,  or  had  reason  to 
\^^5^  believe  it  to  be  false.  The  judgment  rendered  on  the  verdict, 
W/v>^w-  which  was  for  the  defendant,  was  reversed  for  error  in  giving 
the  foregoing  instruction;  and,  upon  the  question  concerning 
which  the  courts  below  entertained  different  opinions,  the  case 
has  been  ordered  to  be  reported. 

The  contention  of  the  counsel  for  the  plaintiff  in  error  ap- 
pears to  be  that  the  effect  of  the  averment  charging  the  defend- 
f__„_uJc  ox         ant  with  knowledge  of  the  falsity  of  the  warranty  was  to  make 
tj\  Wok>a>4y.  the  action  one  for  deceit  or  fraud,  and  therefore  proof  of  such 
^  knowledge  was  essential  to  plaintiff's  right  of  recovery;  other- 
wise the  petition  would  include  two  inconsistent  causes  of  action 
which  could  not  be  joined.     The  code  permits  the  plaintiff  to 
statethe  facts  which  constitute  his  cause  of  action;  and  when, 
upon  anyof  the  facts  so  stated,  he  is  entitled  to  recover,  he  can- 
not^ denied  that  right  because  he  has  alleged  other  facts  that 
he_is^  unable  to  prove.     A  warranty  in  a  sale  of  chattel  prop- 
erty is  a  part  of  the  contract,  and  the  warrantor  is  bound  by  it, 
and  answerable  in  damages  for  its  breach,  though  he  may  have 
honestly  believed  the  article  to  be  as  warranted.     But  the  rep- 
resentations of  the  seller  may  fall  short  of  an  express  warranty, 
and  yet  may  be  such  as  induce  the  purchaser  to  rely  upon  them, 
and  entitle  him  to  redress  against  the  seller  if  the  latter  knew 
they  were   false,   or  recklessly  made  them  without  reasonable 
ground  for  believing  them  to  be  true.     And  which  of  these 
phases  of  his  case  the  purchaser  may  be  able  to  sustain  by  proof 
can  only  be  determined  on  the  trial ;  but  proof  of  either  entitles 
him  to  relief.     And  it  is  competent,  we  think,  for  the  plaintiff 
to  state  in  his  pleading  all  the  facts  of  the  transaction  which 
enter  into  his  right  to  recover,  as  he  believes  them  to  be,  though 
they  present  different  grounds  of  recovery,  and  admit  of  differ- 
ent modes  or  measures  of  relief,  and  to  ultimately  have  that 
relief  to  which  the  allegations  proved  showed  him  entitled.   Th^i. 
tition_of  the   plaintiff  alleges  an   express  warranty   of  the 
orse,  and  a  breach  of  that  warranty,  and  his  right  to  recover^ 
damages  resulting  from  that  breach  was  not  affected  by  the 
allegation  of  the  defendant's  knowledge  of  the  falsity  of  the 
warranty.     The   latter  allegation   did  not,   as  counsel  for  the 
plaintiff'  in  error  contends,  change  the  action  to  one  exclusively 
for  deceit,  nor  is  it  inconsistent  with  those  upon  the  warranty. 


Sec.  2.]  g.uitner  v.  cor  wine.  71 

They  may  all  be  true.    Whether  there  is  more  than  one  cause  of 
action  stated  in  the  petition  is  a  question  upon  which  differences 
of  opinion  may  exist.    But  it  need  not  now  be  determined.    Jf 
there  are  two — one  for  breach  of  the  warranty,  and  the  other 
for   fraud,   they  grew  out  of  the  same  transaction,  and  may 
properly  be  joined  in  the  same  petition;  and,  no  motion  having 
been  made  to  require  them  to  be  separately  stated,  that  objec-  '^^'>>^^^  ^  ^«OTk«- 
tion  to  the  petition,  if  it  were  open  to  it,  was  waived  by  an-  ^^^^^  oo^ 
swer.    In  favor  of  the  view  that  there  is  but  one  cause  of  action  v,>>-asX'o~sii>.  ^-^^ 
stated,  it  may  be  said  there  was  but  a  single  transaction  be-  '^Tt^^^T'^'^C^'^^ 
tween  the  parties  (the  negotiations  resulting  in  the  sale  of  the  ^^.^.^  Jt^^jc^jL^ 
horse)  ;  there  was  but  one  wrong  of  the  defendant  (the  sale  of  oo — ^.^iK^^y^-^ 
an  unsound  animal  as  and  for  a  sound  one)  ;  and  there  is  but  ^^^^^^^^\^^Tl^. 
one  right  of  the  plaintiff  growing  out  of  the  wrong,  and  that  a^^jiX^x^  o /vjva/v. 
is  to  have  redress  for  the  injury  he  sustained  in  consequence  of  '-'^^  *-  '^''^ — ^^ 
it,  and  for  which  he  can  have  but  one  recovery.     And  a  state-  ^^^Zj>~y  (Cy--^ 
ment  of  all  the  facts  of  the  transaction,  with  a  demand  for  the  ^.Jl-jlt^o^jjl^  (^~ 
relief  desired,  as  one  cause  of  action,  seems  more  in  harmony    ^^-^-^^  ,  "^  ■'j^o^vj 
■v^ith   our   reformed  system  of  pleading  than   a  repetition  of    tj^^jj^^^^v.^  ;>*-\)^ 
them,  which  becomes  necessary,  in  part  at  least,  in  their  state- yJL©^^>^.  ^ /Laa/w 
ment  as  separate  causes  of  action.    But,  in  either  event,  whether  ^/^  1>&-A  , "«   ^ 
the  petition  states  but  one  cause  of  action  or  two,  the  plaintiff,  ^>J^-^r-AA  ^  '^ 
upon  proof  of  the  warranty,  and  that  it  was  broken,  to  his  dam-  ^  "^'^^,.  ^-'^'^ 
ace,  vras   entitled  to   a  verdict,   notwithstanding   he   failed  to  "^ 

establish  by  proof  the  defendant's  knowledge  that  the  warranty   ^^^^' 
was  false;  and,  as  this  right  was  denied  him  by  the  instruction  -^...^  ooUos--"'-^ 
given  to  the  jury,  the  reversal  of  the  judgment  for  that  reason  ^^~-e>^-^^-  ^^^  <^^ 
was  not  error.  Judgment  affirmed.      '^^^^'^■"^*-  v^"* 

out  V^-^Si    f\     c,/,rwOCj\J»-<5i 


^ 


SUPERVISORS   OF   KEWAUNEE    COUNTY   v.    DECKER.<r-'W>^  ^^^"^ 

30  Tf«.  634.    [1873.] 

Action   for  the  recovery  of  money  alleged  to  belong  to  the  (XxJIx^j^^  ^^^ 
county  of  Kewaunee,  and  to  have  been  converted  by  defendant  ~<vv<r-^  ^.'c-^  - 
Decker  to  his  own  use,  he  being  the  clerk  of  the  plaintiff  board  '-'-X-f-^^^^^^^i-''^*-'^^ 
of  supervisors.    The  opinion  states  the  case.     Defendant  having  ^^  '^^'  *~^ 
demurred  to  the  complaint  for  insufficiency,  the  demurrer  was  '   "^ 

overruled,  and  defendant  appealed. 


72 


NATURE    AND    FORMS    OF    ACTIONS, 


[Chap.  I, 


<,^vjr«v.>  ii 


DixoN,  C.  J. :  It  would  certainly  be  a  most  anomalous  and 
hitherto  unknown  condition  of  the  laws  of  pleading  were  it 
established  that  the  plaintiff  in  a  civil  action  could  file  and 
serve  a  complaint,  the  particular  nature  and  object  of  which 
no  one  could  tell,  but  which  might  and  should  be  held  good  as 
a  statement  of  two  or  three  or  more  different  and  inconsistent 
causes  of  action,  as  one  in  tort,  one  upon  money  demand  on 
contract,  and  one  in  equity,  all  combined  or  fused  and  moulded 
into  one  count  or  declaration,  so  that  the  defendant  must  await 
the  accidents  and  events  of  trial,  and  until  the  plaintiff's  proofs 
are  all  in,  before  being  informed  with  any  certainty  or  definite- 
ness  what  he  was  called  upon  to  meet.  The  proposition  that  a 
complaint,  or  any  single  count  of  it,  may  be  so  framed  with  a 
double,  treble,  or  any  number  of  aspects,  looking  to  so  many 
distinct  and  incongruous  causes  of  action,  in  order  to  hit  the 
exigencies  of  the  plaintiff's  case  or  any  possible  demands  of  his 
proofs  at  the  trial,  we  must  say,  strikes  us  as  something  ex- 
ceeding novel  in  the  rules  of  pleading.  We  do  not  think  it  is 
the  law,  and,  unless  the  legislature  compels  us  by  some  new 
statutory  regulation,  shall  hereafter  be  very  slow  to  change  this 
conclusion. 

Counsel  for  the  defendant  in  this  action  suppose  the  com- 
plaint herein  to  be  intended  and  to  be  one  in  trover,  charging 
or  seeking  to  charge  the  defendant  with  the  wrongful  conver- 
sion of  certain  moneys  which  came  into  his  hands  as  a  public 
officer,  and  which  belonged  to  the  plaintiff;  and,  acting  upon 
such  supposition,  they  have  demurred  to  the  complaint  as  not 
stating  facts  sufficient  to  constitute  that  cause  of  action.  It 
would  be  unfair  to  say  that  the  learned  counsel  for  the  plain- 
tiff equivocate  on  the  point,  nor  is  it  true  that  they  take  issue 
with  the  counsel  for  the  defendant  as  to  the  nature  of  the  com- 
plaint. They  rather  concede  than  otherwise  that  the  complaint 
is  and  was  intended  to  be  one  in  tort  for  the  conversion,  but 
they  at  the  same  time  insist  that  if  it  is  not  good  as  a  complaint 
of  that  kind,  it  is  sufficient  as  a  complaint  or  count  in  an  action 
for  money  had  and  received,  and  being  sufficient  for  that  pur- 
pose, they  argue  that  the  demurrer  was  properly  overruled,  and 
the  order  of  the  court  below  should  be  affirmed  on  that  ground. 
In  other  words,  their  position  is  that  it  is  a  question  now  open 
to  speculation  and  inquirj"  on  this  demurrer,  whether,  upon  all 
or  any  of  the  facts  stated  in  the  complaint,  taken  collectively  or 


Sec.  2.]  supervisors  v.  decker.  73 

separately,  or  even  by  severing  the  allegations  themselves,  so  as 

to  eliminate  or  discard  certain  portions  of  them  as  surplusage, 

a  cause  of  action  of  any  kind  is  or  can  be  made  out,  and,  if  it 

be  found  that  it  can,  then  the  demurrer  should  be  overruled. 

To  show  that  the  complaint  may  be  upheld  as  one  for  money 

had  and  received  for  the  use  of  the  plaintiff,  and  the  action  xptji .  <xauw4-o 

considered  as  one  of  that  kind,  counsel  gravely  contend  that-\>j,^<^  ow<iv^,va>w. 

the  averments  that  the  defendant  made  fraudulent  representa-  o^  \j^<xa/n>v.  ,  jXj 

tions,  and  acted  falsely,  fraudulently  and  wrongfully,  in  claim-  '^— «->.  Va>  V>j>-«j 

ing  and  withholding  the   moneys,   and  that  he   converted  the    *^  A-o^r-^YUjA-e 

same,  etc.,  may  be  disregarded  and  rejected  as  surplusage. 

In  support  of  this  position,  counsel  cited  several  New  York 
decisions,  and  some  in  this  court,  where,  after  trial  and  judg- 
ment, or  after  issue  had  been  taken  upon  the  merits,  or  after 
tJte  trial  has  commenced  and  the  plaintiff's  case  is  closed,  it  has 
been  held  that  such  allegations  may  be  disregarded.     The  de- 
cisions were  in  actions  like  the  present  and  others  involving  a  . 
somewhat  similar  question  under  the  circumstances  above  stated,          .        »^ 
and  were  made  in  favor  of  a  good  cause  of  action,  proved  or    ^r^""^'         . 
proposed  to  be,  and  which  by  a  fair  and  reasonable  interpre-              tjv>r.-<rv*»j 
tation  of  the  pleadings  could  be  said  to  be  within  the  scope  of        AlAltT''"*^-t- 

them,  or  to  be  fairly  mapped  out  and  delineated  by  the  aver-  ^         \-v^^^^^*-^ 
'  ^11  ^  ^  c_<>.,yv.-»_».   n    Out 

ments,  so  that  the  defendant  was  apprised  of  the  demand  made  ^^^^^^^^  \r>.c-w^ 
against  him,  and  of  the  facts  relied  upon  to  establish  it.  The  tK^..^rJ;.  f*s55>:j 
great  liberality  of  the  code,  and  the  broad  powers  of  amendment  ^a^  >--C<^^  c-»v^ 
conferred  and  enforced  upon  the  courts  under  such  circum-  ^^i-^-^^^-'N^  ov-o~. 
stances  are  well  known.  It  is  declared  that  no  variance  between  ^''C^-  ^'^■*'^-  '^ 
the  allegation  in  a  pleading  and  the  proof  shall  be  deemed  ma-  vov^+r  x^^*^^ 
terial,  unless  it  shall  actually  mislead  the  adverse  party  to  his  Wjo^^^  ov-vs^  !l 
prejudice  in  maintaining  his  action  or  defense  upon  the  merits,  -^o-xa^^A  .^y^>-A 
and  that  when  the  variance  is  not  material,  the  court  may  direct  v>>A...^_^yj...O=^  .s-r-- 
the  fact  to  be  found  in  accordance  with  the  evidence,  or  may  vjt^  ^--vaj-oJCo  r 
order  an  immediate  amendment  without  costs.  Most  liberal  -^^sl 
provision  is  also  made  for  amendments  in  other  respects,  by 
adding  to  or  taking  from  the  pleadings  before  or  after  judg- 
ment in  furtherance  of  justice.  Where  an  answer  is  put  in,  it 
is  provided  that  the  court  may  grant  the  plaintiff  any  relief 
consistent  with  the  case  made  by  the  complaint  and  embraced 
within  the  issue.  And  it  is  furthermore  declared  that  the  court 
shall,  in  every  stage  of  an  action,  disregard  any  error  or  defect 
in  the  pleadings  or  proceedings,  which  shall  not  affect  the  sub- 


74  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

stantial  rights  of  the  adverse  party,  and  that  no  judgment  shall 
be  reversed  or  affected  by  reason  of  such  error  or  defect.  These 
provisions^  for  the  most  part,  if  not  entirely,  relate  to  the  pro- 
ceedings in  an  action  after  issue  joined  on  the  merits,  upon  or 
after  the  trial,  or  after  judgment  on  the  merits,  when  the  facts 
are  made  to  appear  and  the  substantial  rights  of  the  parties 
are  shown.  They  are  enacted  in  amplification  and  enlargement 
of  the  rules  of  the  common  law  on  the  same  subjects,  by  which 
it  is  well  understood  there  were  many  defects,  imperfections, 
[md~omissions,  constituting  fatal  objections  on  demurrer,  which 
'^  c«-wv.  y^rQYe  cured  after  issue  joined,  and  a  trial  or  verdict  and  judg- 
-  ^^-«-^  ^'^^^^^^  on  the  merits.  The  cases  cited  by  the  counsel  are  all  of 
them  manifestly  snch  as  fall  within  these  provisions  and  rules, 
and  none  of  them  touch  or  have  any  bearing  on  the  question 
k  or  case  here  presented.     No  case  arising  upon  demurrer  to  the 

complaint  is  cited,  and  it  is  believedT  none  can  be,  holding  any 
.^..jL,.  »^^X,A^such  doctrine  as  that  contended  for.     Most  of  the  cases  were 
.«-x,w.oSlb.:»vO^  where  no  objection  was  taken  until  after  issue  was  joined  and 
A  /JL*3;5»-  o-  trial  had  and  judgment  rendered  on  the  merits,  and  then  the 
ji.  t_».,^^ij>.r)  objection  was  brought  forward  as  a  ground  of  reversal,  and 
»vx  vy-  '^'^    generally  in  the  appellate  court,  that  the  plaintiff  had  declared 
j_fc^  .vx~4>/v>,-     ^jj  ^Qj.|.  g^j-^^i  recovered  on  contract,  or  vice  versa,  or  had  sued 
in   equity  and   recovered  judgment  at   law,   or  that  equitable 
relief   had   been   granted   in   an    action   commenced   and   tried 
as  one  on  the  law  side  of  the  court.     In  all  the  cases  the  objec- 
tion had  been  waived  by  failure  of  the  party  to  take  it  properly 
and  in  season,  and  under  the  liberal  powers  of  amendment  and 
curative  provisions  of  the  code,  it  was  held  that  the  proceedings 
or  judgments,  just  in  themselves,  should  not  be  disturbed  upon 
points   of   mere   form.     Further  or  more   particular   comment 
upon  the  cases  is  deemed  unnecessary.     It  suffices  to  repeat  the 
references  as  found  in  the  printed  argument  of  the  counsel : 
Barlow  v.  Scott,  24  N.  Y.,  40;  Byxbie  v.  Wood,  id.  607;  Austin 
v.  Rawdon,  44  N.  Y.,  63 ;  Greason  v.  Keteltas,  17  id.,  491 ;  Emery 
V.  Pease,  20  id.,  62;  Conaughty  v.  Nichols,  42  id.,  83;  Wright 
v.  Hooker,  10  id.,  51;  Walter  v.  Bennett,  16  id.,  250;  Stroebe 
v.  Fehl,  22  Wis.,  347;  Hopkins  v.  Oilman,  id.,  481;  Tenney  v. 
State  Bank,  20  Wis.,  152;  Leonard  v.  Rogan,  id.  540;  Samuels 
V.  Blanchard,  25  id.  329 ;  Vilas  v.  Mason,  id.  310,  328. 

It  thus  appears  that  the  authorities  relied  upon  do  not  sanc- 
tion the  position,  that  a   complaint   in  the   first   instance   and 


Sec.  2.]  supekvisors  v.  decker.  75 

Avhere  challenged  by  demurrer,  may  be  imcertain  and  ambula- 
fory,  purposely  so  made,  now  presenting  one  face  to  the  court 
and  now  another,  at  the  mere  will  of  the  pleader,  so  that  it  may 
be  regarded  as  one  in  tort,  or  one  on  contract,  or  in  equity  as  he 
is  pleased  to  name  it  and  the  necessities  of  argument  require, 
and  if  discovered  to  be  good  in  any  of  the  turns  or  phases  wliicn 
it  may  thus  be  m.ade  to  assume,  that  it  must  be  upheld  in  that 
aspect,  as  a  proper  and  sufficient  pleading  by  the  court^     As 
already  observed,  the  opinion  of  the  court  is  quite  to  the  con- 
trary.    We  have  often  held  that  the  inherent  and  essential  dif- 
ferences and  peculiar  properties  of  actions  have  not  been  de- 
stroyed,  and  from  their  very  nature  cannot  be.     Howland  v.      .    ,^r<rx>iA  ^ 
Needham,    10   Wis.,    495,   498.      These   distinctions   continuing,  ,^^^„j,^,^j^  ti»  <J>^ 
they  must  be  regarded  by  the  courts  now  as  formerly,  and  now  ,j^  vwa3l>  ojs  to 
no   more  than  then,  except  under  the   peculiar  circumstances  '^^^'^  c*-»'<J^  ^ 
above  noted,  can  anyone  complaint  or  count,  be  made  to  sub-  o^^^J^^  ^^i^/^^- 
serve   the    purposes   of    two    or   more    distinct    and    dissimilar  '^-<>-j>*-^^^'^ /Y*^ 
causes  of  action  at  the  option  of  the  party  presenting  it.     It   *\/'^-''"*'''-^'''~^ 
cannot  be  "fish,  flesh  or  fowl,"  according  to  the  appetite  of  the  -v'v^.,,,,^  X>. 

attorney  preparing  the  dish  set  before  the  court.     If  counsel  <jj,,s>j^^  doiojx^ 
disagree  as  to  the  nature  of  the  action  or  purpose  of  the  plead-  auc-os*jx/>i>J^  tyvv 
ing,  it  is  the  province  of  the  court  to  settle  the  dispute.    It  is  a  Ajia^.-v^^^jxh-jlju 
question  when  properly  raised  which  cannot  be  left  in  doubt,  '-''^-'-**^  /v^'vK  r^, 
and  the  court  must  determine  with  precision  and  certainty  upon  .  x^*^^ 

inspection  of  the  pleading  to  what  class  of  actions  it  belongs  or   ^  ^'^^'"^ 
was  intended,  whether  of  tort,  upon  contract,  or  in  equity,  and, 
if  necessary  or  material,  even  the  exact  kind  of  it  within  the 
class  must  also  be  determined.     See  Clark  v.  Langworthy,  12 
Wis.,  441;  and  Gillett  v.  Treganza,  13  Wis.,  472. 

This  is  not  only  in  harm.ony  with  the  decisions  above  referred 
to,  but  with  all  the  decisions  of  this  court  bearing  upon  the 
question,  and  we  know  of  none  elsewhere  in  conflict.  It  is  in 
harmony  with  those  decisions  which  have  been  made,  that  an 
application  to  amend  should  be  denied,  which  proposes  to  en- 
tirely change  the  cause  of  action  sued  upon,  or  to  introduce 
a  ncAv  one  of  a  different  kind.  Ne\^i;on.  v.  Allis,  12  Wis.,  378 ; 
Sweet  V.  Mitchell,  15  id.,  641,  664,  and  19  id.  528;  Larkin  v. 
Noonan,  19  id.,  82;  Stevens  v.  Brooks,  23  id.,  196.  It  is  in 
harmony  with  the  decision  in  Scheunert  v.  Kaehler,  23  Wis., 
523,  Avhere  upon  demurrer  to  the  counter  claim  of  the  defend- 
ant,  the    court    inspected    the    complaint    and    determined   the 


76  NATURE    AND    FORMS    OF    ACTIONS.  [ClIAP.    I. 

nature  of  it,  and  said  th^it  "the  subject  of  the  action  is  the  tort 
or  Avrong  which  was  committed  in  the  conversion  of  the  money. 
That  is  the  foundation  and  sole  foundation  of  the  plaintiff's 
claim  in  this  form  of  action;  for,  unless  the  money  was  un- 
lawfully converted,  the  action  cannot  be  maintained."  Coun- 
sel criticize  this  language  and  say  that  it  is  inconsistent  with 
some  of  the  cases  first  above  cited.  We  answer  clearly  not, 
when  correctly  understood  and  applied,  that  is,  in  case  proper 
objection  was  taken  to  a  recovery  upon  any  other  ground,  or 
upon  any  proofs  short  of  those  establishing  the  cause  of  action 
stated  in  the  complaint.  Counsel  say,  however,  and  we  think 
with  entire  correctness,  that  after  demurrer  sustained  to  the 
counter  claim,  as  was  there  done,  on  the  ground  that  the  com- 
plaint was  in  tort,  there  could  be  no  recovery  in  the  action 
except  for  a  tort.  The  greatest  injustice  might  result  to  the  de- 
fendant if  this  were  not  so,  or,  if  having  been  deprived  of  his 
counter  claim  on  the  ground  that  the  action  was  in  tort,  the 
plaintiff  should  afterwards  be  permitted  to  recover  against  him 
as  upon  contract.  And  the  same  vieAV  is  also  in  keeping  with 
the  decision  of  this  court  recently  made  in  Anderson  v.  Case, 
>^*T^-  '2S  Wis.,  505,  where  in  an  action  ex  delicto  for  the  seizure  and 
conversion  of  certain  personal  property,  the  plaintiffs  claimed 
that  the  judgment  appealed  from  should  be  affirmed  by  this 
court  as  one  for  money  had  and  received,  being  the  proceeds  of 
the  sale  of  the  property  by  the  defendants  which  the  evidence 
on  the  trial  showed  had  been  made  and  the  price  received  by 
them  in  money.  But  it  was  held  against  the  plaintiffs,  and  the 
judgment  was  reversed  because  of  the  substantial  difference 
between  the  action  for  the  wrongful  conversion  and  the  action 
for  money  had  and  received,  and  because,  in  the  former,  execu- 
tion goes  against  the  body  of  the  debtor  as  well  as  his  property, 
M'hile  in  the  latter  it  goes  only  against  his  property.  That  de- 
cision is  authority  for  the  position  that  to  justify  the  rendi- 
tion of  judgment  upon  proof  of  liability  ex  contractu,  where 
the  form  of  action  is  ex  delicto,  the  proceedings  must  be  changed 
by  amendment  so  as  to  conform  to  the  facts  proved  and  the 
nature  of  the  cause  of  action  established,  or  otherwise  that  the 
judgment  itself  must  distinctly  specify  and  show  that  the  re- 
covery was  upon  contract  and  not  in  tort. 

And  directly  also,  in  support  of  the  same  view,  that  the  court 
must  ascertain  and  decide  definitely  what  the  character  of  the 


Sec.  2.]  supervisors  v.  decker.  77 

pleading  is.  and  the  nature  of  the  cause  of  action  stated  in  it, 
or  intended  to  be,  is  the  late  case  of  Lee  v.  Simpson,  29  Wis. 
(June  T.,  1871),  which  likewise  arose  on  demurrer  to  the  com- 
plaint. And  see  Ragan  v.  Simi)son,  27  Wis.,  355,  where  it  was 
held  in  an  action  for  unlawful  detainer,  taken  by  appeal  to  the 
circuit  court,  that  the  defense  set  up  and  proved  that  one  of 
the  defendants  was  a  mortgagor  in  possession,  with  right  to  re- 
deem, could  not  be  treated  at  the  in-stance  of  the  plaintiti's,  as 
an  action  by  the  defendants,  or  one  of  them,  to  redeem  from 
the  mortgage,  but  that  the  defendants  were  entitled  to  a  judg- 
ment of  dismissal. 

But  the  language  in  our  own  reports  which  most  clearly  in- 
dicates the  true  rule  of  law  and  practice  in  cases  of  this  nature, 
is  that  of  Mr.  Justice  Paine  in  Samuels  v.  Blanchard,  supra, 
where,  speaking  of  the  complaint  in  that  case,  he  says:    "If  the 
question  had  been  presented  properly  at  the  preliminary  stage 
of  the  case,  the  character  of  the  summons,  taken  in  connection 
with  the  form  of  the  allegations  of  the  complaint,  might  have  -\Uy^  uwv.^ 
required  it  to  be  decided  that  the  action  must  in  strictness  be  wv^  ^oJo^^vw 
regarded  as  upon  contract."    And  again,  he  says:    "The  facts  w^aXi^AAA.  t>i    ^ 
that,  if  the  action  was  considered  as  one  upon  contract,  the  ob-  o*.a-^/va  r\  qj, 
jection  appeared  on  the  face  of  the  complaint  and  might  have    <rv..  6a/wvs*Krx. 
been  taken  advantage  of  by  demurrer,  and  that  no  demurrer 
was  interposed,   and   that  both  parties   introduced   fully  their 
evidence,  as  to  the  whole  controversy,  in  the  absence  of  any- 
thing showing  that  this  di.stinct  question  was  raised  at  all  in 
the  court  below,  we  think  sufficiently  establish  the  claim  of  the 
respondent 's  counsel,  that  it  was  tried  there  as  an  action  of  tort, 
without  objection,  and  must  be  .so  treated  here." 

The  foregoing  language  indicates  not  only  that  the  sufficiency 
of  the  pleadings  must  t>?  determined  on  demurrer  to  it,  but 
also  the  true  nature  and  object  af  it.  or  what  the  particular 
Jvind  or  cause  of  aetion  stated  is,  or  is  designed  to  be,  and  that 
lor  Jhis  purpose  the  character  of  the  summons  may  be  taken" 
mto  consideration  in  connection  with  the  form  of  the  allega- 
ITons  of  the  complaint""  And  this  we  take  to  be  the  tmp  mlp" 
that  the  court  must  in  the  first  instance  decide  with  certainty 
what  the  specific  cause  of  action  counted  and  relied  upon  is, 
and,  having  decided  that,  it  must  next  determine  whether  the 
complaint  contains  a  sufficient  statement  of  such  cause,  and  if 
it  does  not,  the  demurrer  must  be  sustained.     In  the  present 


78 


NATURE    AND    FORMS    OP    ACTIONS. 


Sa»a»- 


[Chap.  I. 


case  the  summons  is  for  relief,  and  not  one  for  a  money  demand 
arising  on  contract.  The  summons  is  appropriate,  therefore^ 
only  to  the  action  of  tort  or  for  damages  for  the  wrongful  con- 
version of  the  moneys.  It  corroborates  the  intention  of  the 
pleader  as  shown  by  the  allegations  of  the  complaint,  to  sue 
in  that  form  of  action,  and  from  both,  we  think  it  clearly 
enough  appears  that  the  action  is  and  was  designed  to  be  in 
tort,  and  not  upon  contract;  and  by  this  standard  or  by  the 
rules  of  pleading  which  should  govern  in  an  action  for  the 
wrongful  conversion  of  the  moneys,  must  the  sufficiency  o-f  the 
averments  be  tested. 

Considered  as  an  action_of^tpover^  or  one  sounding  in  dam- 
ages lor  the  tortious  conversion  of  the  moneys,  the  complaint  is 
in  several  respects  faulty  and  imperfent.     *    ^     *~    ^  ~ 

Judgment  reversed. 


CONWAY  V.  REED. 

66  Mo.,  346.    [1877.] 

This  was  an  action  for  damages  sastained  by  respondent  in 
consequence  of  the  alleged  unlawful  and  wrongful  shooting-  of 
""  /UxWil'        ^^^^  ^^   ^^^  appellant,  v/hereby  the  amputation  of  his  left  leg 
^^^7^-^  "^vas  rendered  necessary,   and  other  injuries  Avere  suffered  by 
""^^^^  _       _  'him.    In  addition  to  the  denial  of  the  allegations  of  the  petition, 
the   answer  set  up,  as  a   special   defense,  that   appellant  and 
respondent,  and  other  boys  about  their  own  age,  twelve  or  thir- 
teen years,  were  out  playing  together,  having  a  gun,  and  that 
in  the  course  of  their  talk  and  play,  whilst  the  gun  was  in  the 
hands  of  appellant,  without  any  fault  or  negligence,  or  design 
on  the  part  of  appellant,  the  gun,  without  being  aimed  at  or 
directed  towards  the  respondent,  accidentally  went  off  and  was 
discharged,  and  by  accident  alone  shot  respondent,  from  which 
he  suffered  and  had  to  have  his  leg  amputated.     On  the  trial 
evidence   was  offered  by   appellant  tending  to  show  that   the 
shooting  was  purely  accidental  and  unintentional,  and,  by  re- 
spondent, that  it  was  owing  to  the  carelessness  and  negligence 
P"^^^  p^A^T^of  appellant.     The   jury  rendered   a  verdict  in   favor  of  the 
X^  .sj^.       respondent  for  one  thousand  dollars.     *     *     * 

Henry,  J. :     An  infant  is  liable  for  a  tort  in  the  same  man- 
ner as  an  adult.    Bullock  v.  Babcock,  3  Wend.,  391;  Campbell 


Sec.  2.]  con  way  v.  reed,  79 

V.  Stakes,  2  Wend.,  138;  Vassc  v.  Smith,  6  Cranch,  230;  Morgan 
V.  Cox,  22  Mo.,  374. 

It  is  contended  by  appellant  that,  because  the  petition  alleged  ^bc^.c>:-'^fct/-^ 
that  defendant  unlawfull^and  wronofully  assaulted  the  plain-  ^-*--»^  V^^^  ^ 
tiff  and  shot  him  with  a  gun,  evidence  of  a  negligent  or  carer  '^^^^  f*^'^\y^ 
less  shooting  would  not  sustain  the  averment  m  the  petition; 
in  other  words,  that  the  petition  alleged  one  cause  of  action 
and  the  evidence  established  another,  if  any.     Bullock  v.  Bab- 
cock,  supra,  was  an  action  of  trespass  for  assault  and  battery. 
The  defendant  was  a  boy  about  twelve  years  of  age,  and  the 
evidence  showed   a  negligent  shooting  of  plaintiff  by  defend- 
ant with  an  arrow  from  a  bow,  and  it  was  held  sufficient  to  en- 
title plaintiff  to  a  judgment. 

In  Morgan  v.  Cox,  defendant  was  an  infant.  The  petition  in 
that  case  alleged  a  negligent  killing  of  phiintiff"s  slave  by  the 
defendant,  but  there  is  no  intimation  in  the  opinion  of  the 
court  that,  if  the  petition  had  alleged,  as  in  this  case,  that  de- 
fendant unlawfully  and  wrongfully  shot  the  slave,  the  evidence 
that  it  was  the  result  of  carelessness,  would  not  have  established 
the  cause  of  action  stated  in  the  petition.  Leonard,  J.,  said: 
"The  facts  of  the  present  case  would,  under  the  former  system 
of  procedure,  have  supported  an  action  of  trespass,  and  cannot, 
we  think,  be  distingui.shed  from  the  cases  cited.  In  one  of  them 
the  party,  in  uncocking  his  gun,  accidentally  discharged  it  and 
wounded  a  bystander.  Here,  the  defendant  accidentally  struck 
the-  hammer  of  his  gun  against  his  saddle,  and  the  same  result 
ensued.  In  both  cases  it  was  upon  the  defendant  to  show  that 
it  happened,  as  the  books  say,  by  inevitable  accident,  and  with- 
out the  least  fault,  and  the  change  that  has  been  introduced  by 
the  new  code  in  the  remedy  has  not  changed  the  rules  of  law 
as  to  the  liability  of  the  parties."  The  change  introduced  by  Cc»^A>-  t^xvX»^<y 
the  new  code  in  the  remedy  did  not  go  to  the  extent  of  requiring  -o-'-«»s^-<x  v^ 
less  or  more  material  allegations  in  a  petition  than  were  neces-  '^'^^^''"'^^^'^^^^^''^ 
sary  to  constitute  a  cause  of  action  at  common  law,  but  only  ^  \^^ 

obviated  the  necessity  of  using  those  formal  and  technical  aver-,^,^^,,»xw»x,  oJlH 
ments  which,  it  had  been  held,  were  necessary,  and  for  which  -iWvvo  ^>f--^ 
no  other  mode  of  stating  the  same  thing  could  be  substituted. 


The  change  introduced,  to  which  the  very  able  .judge,  who  de-  r^^^^fTj.^^^ 
livered  that  opinion,  alluded,  was  that  made  by  the  first  sec- 
tion of  the  act  of  December,  1865,  Revised  Statutes  of  1855. 
page  1216,  which  provided  that  there  should  be  but  one  form  of 


80 


NATURE    AND    FORMS    OF    ACTIONS. 


[ClIAP.    I. 


action  for  the  enforcement  or  protection  of  private  rights,  and 
the  redress  or  prevention  of  private  wrongs,  to  be  denominated 
a  civil  action;  and  in  the  third  section  of  article  6,  page  1229, 
requiring  in  a  petition  "a  plain  and  concise  statement  of  the 
facts  constituting  the  cause  of  action  without  any  unnecessary- 
repetition.  ' ' 

These  sections  have  been  retained  in  the  subsequent  revisions. 
Is  it  true  that  the  proof  of  a  negligent  shooting  does  not  sustain 
an  averment  of  a  wrongful  and  unlawful  shooting?  With  re- 
gard  to  the  liability  of  the  defendant,  the  law  holds  an  injury 


inflicted  through  carelessness  as  wrongful  and  unlawful;  if  ac- 
cidental and  inevitable  no  blame  attaches  to  the  person  inflicting 
the  injury.  He  is  then,  in  no  sense,  culpable.  If  the  act  was 
lawful  and  right,  which  is  the  converse  of  the  proposition,  the 
party  inflicting  the  injury  through  negligence  could  not  be  held 
liable,  and  is  only  responsible  because  it  was  unlawful  and 
wrongful. 

At  common  law  the  plaintiff  was  held  to  prove  the  cause  of 
action  alleged  in  his  declaration,  with  as  much  strictness  as 
under  the  code,  and  yet  an  action  of  trespass,  for  assault  j^nd^ 
battery,  as  we  have  seen^jwas__the  proper  form  of  action  for 
direct  in  Junes  negligently  aiidjearelessly  inflicted,  as  well  as 
those  which  were  intentionaj_and  malicioiis. 

The  celebrated  case^of  Scott  v.  Shepperd,  reported  in  2  Wm. 
Black.  892,  and  cited  and  commented  upon  as  often,  perhaps, 
as  any  case  in  the  books,  was  an  action  of  trespass  for  assault 
and  battery.  Weaver  v.  Ward,  Hobart,  134,  cited  by  Judge 
Leonard,  was  in  the  same  form  of  action.  There  the  defendant, 
a  soldier,  had  accidentally  shot  his  comrade  while  exercising. 
In  all  these  cases  the  plaintiffs  maintained  their  actions,  al- 
though the  injuries  received  by  them  were  proved  to  have  been 
the  result  of  accidents,  and  not  intentionally  committed.  In 
none  of  them  was  it  alleged  in  the  declaration  that  the  injury 
was  occasioned  by  the  negligence  of  the  defendant.  "In  decla- 
rations in  trespass,  which  lies  only  for  wrongs  immediate  and 
committed  with  force,  the  in.iury  is  stated,  without  any  induce- 
ment  of  the  defendant's  motive  and  intention^  or  of  the  circum- 
stan^s  under  which  the  injury  was  committed."  1  Chitty's 
Pleadings,  387,  127.  The  court  properly  overruled  the  defend- 
ant's demurrer  to  the  evidence.     *     *     * 

Judgment  affirmed. 


v^ 


Q-l 
g£C.  2.]  CASEY  V.  MASON.  °^ 

CASEY  V.  :^IASOX. 

8  Okla.,  665.    [1899.] 

BURWELL,  J. :  The  defendant  in  error,  Mack  Mason,  com- 
menced this  action  in  the  district  court  of  Logan  County  against 
the  plaintiff  in  error  herein,  to  recover  damages  for  an  alleged 
trespass  upon  real  estate.  The  petition,  omitting  the  caption, 
is  in  the  following  language:  "Mack  Mason,  Plamtitt,  by 
Lawrence,  Houston  &  Houston,  his  attorneys,  complains  of  Wil-  ^^^^^^^  _ 
liam  Casey  and  Charles  Casey,  defendants,  and  for  his  cause  of  >^  w 

action  against  said  defendants  alleges  that  he  is  now  and  has  ^^Wr- 
been  since  the  second  day  of  August,  1897,  the  owner  m  fee  and  ^^^^^^^  ^.^  ^ 
entitled  to  the  possession  of  the  southeast  quarter  of  section "  .^  vm?  ^ 
thirty-one   (31),  in  township  fifteen  (15)  north,  of  range  lour 
(4)  west  of  the  Indian  meridian,  in  the  county  of  Logan  and 
territory  of  Oklahoma;  and  that  said  defendants,  on  the  sixth 
day  of  August,  1897,  and  on  divers  other  days  and  times  be- 
tween that  dav  and  the  commencement  of  this  suit,  with  force 
and  arms  and  against  the  consent  of  plaintiff,  broke  and  entered 
upon  said  premises,  with  teams  of  horses  and  mules  and  plows 
and  then  and  there  turned  over  and  plowed  with  said  teams  and 
plows  about  thirtv  acres  of  said  land,  to  the  damage  of  plaintiff 
of  $100      Wherefore  plaintiff  demands  judgment  against  said 
defendants  in  the  sum  of   one  hundred  dollars  damages  and 
<,osts  of  this  suit.    Lawrence,  Houston  &  Houston,  attorneys  for 
plaintiff  "     To  this  petition  the  plaintiffs  in  error  filed  a  gen- 
eral demurrer,  which  was  by  the  court  overruled,  to  which  rul- 
ing the  defendants  at  the  time  duly  excepted,  and  in  this  court 
they  assign  such  ruling  as  error. 

As  the  ruling'  of  the  court  on  the  demurrer  is  the  first  ques- 
tion to  be  disposed  of,  we  will  consider  it  at  this  time  before  ^ ^ 

makin-  a   statement  of  the   proceedings   and  trial  subsequent  ^^^V^^^^^^^^ 
thereto.    It  is  contended  by  appellants  that  the  petition  fails  to  ^^^_^,^ 
state  a  cause  of  action,  because  it  nowhere  shows  that  the  plain-  ^v^^:^,,^^ 
tiff  below  was  in  the  actual  possession  of  the  land  at  the  time  >^^_,,^^^^ 
that  it  is  claimed  the  trespass  was  committed ;  while,  on  the  ^^.^^  ^ 
other  hand,  counsel  for  appellee  contend  that  possession  is  not-u  <xx5^ 
a  prerequisite  to  maintaining  the  action,  and  that  the  allega-  "^^^^ 
tions  that  appellee  is  and  was  the  owner  of  the  fee  and  entitled  ^^      ' 
to   the    possession    of   the    land    (describing  it)  at  the  time  of 
the  alleged  trespass  is  sufficient.    What  is  a  "trespass"?    It  is 
6 


82  NATURE    AND    FORMS    OF    ACTIONS.  [CUAP.   I. 

any  misfeasance  or  act  of  one  man  whereby  another  is  in- 
juriously treated  or  damnified  (See  Bl.  Comm.,  208) ;  any  un- 
lawful acts  committed  with  violence,  actual  or  implied,  to  the 
person,  property  or  rights  of  another;  any  unauthorized  entry 
upon  the  realty  of  another,  to  the  damage  thereof.  (2  Bouv. 
Law.  Diet.,  p.  747.)  While  different  authors  use  different  terms 
in  defining  the  word,  they  all  give  to  it  the  same  meaning;  but 
the  definition  given  by  Mr.  Bouvier  is  probably  as  clear  as  any 
that  can  be  found.  The  particular  kind  of  trespass  involved  in 
this  action,  and  to  which  alone  we  will  direct  our  attention,  is 
trespass  upon  real  estate. 

Originally,  at  common  law,  the  only  form  of  action  for  tres- 
t„^,<^«,*-«»-c'v^N.pass  upon  real  estate  Avas  trespass  quare  clasum  f regit;  and 
,,,^,^jr^  "iL*-^ ,  to  maintain  this  action  the  plaintiff'  had  to  be  in  possassion  at 
►^1^  vvx«_*>4A.»^jj^^  time  the  injury  was  sustained,  and  this  action  would  only 
%^-®^^  ^^^  lie  for  injury  to  the  possession.  The  owner  of  the  fee  could  not 
]2^_^;.^^^y,^  maintain  an  action  for  trespass,  even  for  permanent  injury  to 
i^ ^.^x^jsSi-  rlx4\,t^^Q  land,  unless  he  was  in  the  actual  possession;  and  this  con- 
>v  rt4^wv..is/vvAAJt  dition  continued  until,  by  the  statutes  of  Westminster,  a  new 
.aJjl^  vw  W-^^-ft)!*!!!  of  action  was  created,  which  enabled  the  owner  of  the  fee 
t^  «h^  <x.ji  c,<»^  to  maintain  an  action  of  trespass  where  the  damage  affected 
^.-o^rX  ^A^>^^the  land,  and  the  right  of  the  owner  of  the  legal  title  to  the 
*^:*-'Y^^'^  'benefits  of  this  action,  which  was  called  "trespass  on  the  case," 
'''*"*^'^"*  did  not  depend  upon  possession.     These  two  forms  of  actions, 

therefore,  existed  at  common  law,  and  are  the  law  of  this  coun- 
try, except  in  so  far  as  they  are  modified  by  statute.   To  sustain 
an  action  of  trespass  on  the  case,  a  plaintiff,  not  in  possession, 
had  to  plead  and  prove  such  a  state  of  facts  as  would  show 
that  the  injury  complained  of  was  an  injury  to  the  land  itself. 
But  it  is  contended  by  the  appellee  that  the  common  law  forms 
of  action  have  been  abolished,  and  that  now  we  have  only  one 
form  of  action,  which  is  called  a  "civil  action,"  and  that  we 
are  not  required  to  plead  with  that  strictness  that  we  were  at 
common  law.     This  contention  is,   in  a  measure,  undoubtedly 
J.  cvVr-^Jiwi/vsiA- correct,  but,  while  the  forms  of  actions  have  been  changed,  we 
^^^.^.j.,^^,^  \>^yyvwmust  not  forget  that  the  right  of  any  particular  action,  as  it 
jt^L^jt -,^vkji       existed  at  common  law,  remains  the  same,  unless  abridged  or 
L>.^Sc*v-tx  ^^^   denied  by  the  statute;  and,  while  the  common    law    forms    of 
^^  ■  action  have  been  abolished,  the  rights  of  such  action  continue 

to  exist,  but  under~a  different  name.  Every  cause  of  action 
that  existed  under  the  common  law  forms,  which  has  not  been 


Sec.  2.]  casey  v.  mason.  83 

abolished,  still  exists  under  the  name  of  a  "civil  action."    The 
statute  did  not  abolish  common  law  causes  of  action — it  only 
abolished  their  forms,  and  grouped  them  under  one  head — and  A  r^-^x^^^^  "^ 
there  is  no  difference  between  trespass  at    common    law    and  *^^^**=*-*^^^  ' 
under  the  statute.  A  plaintiff,  under  the  statute,  must  allege  and  ^•'>■'^'*^  '*^ 
prove  every  fact  that  he  was  required  to  allege  and  prove  at  com-  ^ 
mon  law.  To  illustrate :    The  owner  of  the  fee,  not  in  possession, 
"cannot,  under  the  statute,   maintain  an  action   for  injury  to 
the   possession  any  more  than  he  could  at  common  law.     At 
common  law  a  plaintiff'  had  to  allege  such  a  state  of  facts  as 
would  show  that  he  was  entitled  to  the  relief  prayed,  or  his 
action  was  dismissed.    Will  he,  under  the  statute,  be  excused  by 
pleading    less?    Certainly    nut.     Under    the    statute    he    may 
amend,  but  the  same  facts  must  be  pleaded  as  at  common  law, 
only  under  a  different  form,  and  the  pleading  is  given  a  differ- 
ent name.    At  common  law  a  cause  of  action  had  to  be  stated  in 
a  certain  form,  with  technical  precision.     The  statute  ignores 
this  form  and  looks  to  the  substance  of  the  pleading  only.    The 
statute,  though,  exacts  from  the  pleader  every  allegation  which 
is  necessary  to  show  that  he  is  entitled  to  the  relief  sought. 

With  this  thought  in  mind  we  will  return  to  the  petition  in 
this  case.     It  alleges  that  the  plaintiff'  was  the  owner  of  the 
fee,  and  entitled  to  the  possession ;  but  these  allegations  are  not 
sufficient  to  show  that  he  was  in  the  actual  possession.    In  fact, 
the  allegation  that  he  "was  entitled  to  the  possession"  of  the 
real  estate  indicates  that  he  was  not  in  the  actual  possession 
thereof,  and  that  is  the  construction  which  we  place  upon  it; 
for  it  will  be  presumed  that  if  the  plaintiff"  is  in  the  actual  pos-  oa3*->iv*^3^*-*^  ' 
session  of  the  land  he  would  have  so  stated    in   his   pleading.  .^.^Xa*-^  ^jk-*«»-! 
But,  under  the  contention  of  the  appellee,  that  would  make  no^,**-^  Qv:;^j»/vr^ 
difference.    However,  we  take  a  dift'erent  view  of  the  law.    Mr.  ti]^. /xa-oryo/^   ^ 
Waterman  in  his  work  on  Trespass  (vol.  2,  §987),  says:    "Thc^^^^  x./vn^-jjaa*v  >- 
action    (referring  to  trespa.ss)    is  brought  to  recover  damages  v-'<^^>^-^-«^'^p*^ 
for  an  injury  to  plaintiff's  possession  of  real  estate.     The  sub-  "^^  cr^'^.^.^^.^*'^ 
stance  of  the  declaration  Ls  that  the   defendant  has  forcibly  *^  *^  -^^/^-«o-*^ 
and   wrongfully   invaded   land   in   the   possession  of   plaintiff. 


Though  the  title  of  property  in  the  locus  may,  and  often  does, 
come  in  controversy,  yet  the  gist  of  the  action  is  always  the  in- 
jury' done  to  the  plaintiff's  possession,  actual  or  constructive." 
We  think  that  one  is  not  entitled  to  maintain  an  action  for 
trespass  unless  he  is  in  the  actual  possession  of  the  realty,  ex- 


kA\-ja-*X 


84  NATURE    .VND    FORMS    OF    ACTIONS.  [ChAP.   I. 

cept  where  he  holds  the  fee,  and  the  injury  is  to  the  land  itself, 
or  where  the  plaintiff  owns  the  fee,  and  further  shows  by  his 
petition  that  the  land  is  unoccupied,  and  he  has  the  constructive 
possession  thereof.  This  position  is  amply  supported  by  the 
authorities. 

(A  part  of  the  discussion  dealing  with  the  substantive  law 
has  been  omitted.) 

When  a  plaintiff  brings  an  action  he  must  state  the  facts  in 
ordinary  and  concise  language.  After  he  has  done  this,  it  then 
becomes  a  question  of  law  as  to  whether  he  is  entitled  to  recover ; 
and  a  plaintiff*  may  maintain  trespass  for  injury  to  his  posses- 
sion only  when  he  is  in  the  actual  possession,  and  so  alleges,  or 
where  he  is  the  owner  of  the  fee,  and  further  shows  by  his  peti- 
tion that  the  land  is  unoccupied,  and  the  plaintiff'  has  the  con- 
structive possession  thereof.  He  may  also  maintain  an  action  in 
the  nature  of  trespass  on  the  case,  where  he  alleges  that  he  owns 
the  legal  title,  and  further  sets  out  such  a  state  of  facts  as  will 
show  that  the  injury  is  an  injury  to  the  real  estate.  These  rules 
are  fundamental,  because  if  one  has  no  possession  of  a  certain 
tract  of  land,  either  actual  or  constructive,  no  right  of  his  can 
be  invaded  by  going  thereon;  and  one  having  no  legal  title  to 
real  estate,  either  in  whole  or  a  reversionary  interest  therein, 
cannot  be  damaged  by  the  destruction  of  buildings  or  trees,  or 
any  of  the  appurtenances  thereon  or  thereunto  belonging,  be- 
cause he  has  no  interest  in  the  land.  Where  there  is  no  right 
there  can  be  no  remedy.  These  views  are  supported  by  the 
case  of  Bascom  v.  Dempsey  (Mass.),  9  N.  E.,  744. 

One  other  question  remains  to  be  settled  before  determining 
as  to  whether  or  not  the  demurrer  was  properly  overruled,  and 
that  is,  was  the  plowing  of  plaintiff's  land  an  injury  to  the  real 
estate?     The  petition  nowhere  alleges  that  the  land  plowed  was 
meadow  or  grass  land,  or  that  appellants  did  any  injury  to  any 
improvement.     It  only  alleges  that  the  appellants  plowed  plain- 
tiff's land,  to  his  damage,  etc.;  but,  before  we  can  say  that Jhe 
orx>5-*  -v^  plaintiff'  suffered  any  damages  by    reason   of   the    defendant's 
»v^\y^  \MMuo4>^plo;^^g^^s  land,  he  must  allege  some  state  of  facts  that  will 
^  e^..^  u«.       show  that  thejplowing  damaged  his  real  estate.     Plowing  land 
..-lA  -vV5i"''vvYA^^^^j(j  be  an  injury  to  the  possession,  but  not  to  the  real  estate, 
-w*^  -^LJwwv-#-*^     unless  it  were  done  under  such  conditions  as  would  damage  the 
'^Y^^^TvT*^      ^°^^'  °^  destroy  the  grass  or  other  grain  or  herbage,  or  improve- 
ments attached  to  the  soil.     But  we  think  that  the  allegation 


85 

<.j,(.   2.J  CASEY  V.  MASON. 

that  the  defendants  plowed  plaintiff's  land,  without  a  further 
statement  of  facts  showing'  how  such  plowing  injured  his  land 
is  not  sufficient  to  justify  a  recovery  for  damages  to  his  real 

^' The  appellee  has  cited  a  few  cases  other  than  those  referred 
to  heretofore  in  this  opinion,  in  which  it  is  held  that  it  is  not 
necessary  for  a  plaintiff  to  allege  possession  in  an  action  tor 
trespass.    But,  strictly  speaking,  these  cases  are  not  for  trespass 
at  all     They  are  actions  in  the  nature  of  ejectment,  but  by  the 
statutes  of  several  states  are  called  actions  in  "trespass  to  try 
title  "    We  have  no  such  statute,  but,  even  if  we  had,  it  would 
not  change  the  rules  stated  herein.    The  pleader  would  have  to 
state  the  facts,  and  from  them  the  court  would  determine  the 
character  of  the  action,  and,  if  the  action  were  tor  an  injury  to 
the  possession,  the  plaintiff  would  have  to  allege  either  that  he 
was  in  the  actual  possession  of  the  land,  or  set  forth  such  a  state 
of  faft.s  as  would  show  that  he  had  the  constructive  possession 
therei.f-  and  to  do  this  he  would  have  to  allege  that  the  fee  was 
in  him,  and  that  the  land  was,  in  fact,  not  occupied  by  any  one 
else    w»  fi.inW  thnt  tJie_Eetition  failed  to  state  a  cause  of  action, 
and  therefore  the  defendant's  demurrer  should  have  been  sus- 
tained, and,  this  being  true,  it  is  not  necessary  to  pas.s  upon  the 
other  (luestions  presented.     For  the  reasons  herein  stated,  the 
iud-ment  of  the  trial  court  is  reversed,  at  the  cost  of  the  ap- 
pellee and  the  case  remanded  to  the  lower  court,  with  directions 
that  t'he  trial  court  sustain  the  demurrer,  and  to  proceed  further 
in  accordance  with  the  views  herein  expressed.    All  of  the  jus- 
tices concurring,  except  Burford,  C.  J.,  who  presided  at  the 
trial  below,  not  sitting.*  \*^    "^  " 


^    ROGERS  V.  DUHART. 

97  CaJ.  500.     [1893.] 

PETERSON,  J.:  The  complaint  alleges  that  the  executors  of 
the  estate  of  Miguel  Leonis  let  and  demised  unto  the  plaintiff 
certain  lands  belonging  to  the  estate  for  the  term  of  eight 
months  from  and  after  Feb.  1,  1891,  and  thereupon  the  Plamtiff 
took  possession  and  has  ever  since  held  the  same;  that  on  Feb.  1, 

*See  also  Bank  v.  Tiger  Tail  Mill,  152  Mo.  145. 


86  NATURE    AND    FORMS    OF    ACTIONS.  |ClIA?.    I. 

1891,  the  defendant  "entered  upon  the  plaintiff's  said  described 
property,  and  drove  into  and  kept  upon  the  said  land  about 
400  head  of  cattle,  and  about  3,000  head  of  sheep,  and  trod 
down  and  depastured  and  destroyed  all  the  grass  and  herbage 
thereon,  and  so  kept  the  said  cattle  and  sheep  upon  the  same 
continually  thereafter  and  until  on  or  about  the  17th  day  of 
April,  1891,  without  the  consent  of  the  plaintiff,  and  to  his 
damage  in  the  sum  of  $2,000."  The  facts  of  the  case  are  not 
disputed.  They  show  that  defendant  had  the  right  to  pasture 
400  head  of  cattle  upon  the  lands  until  the  first  day  of  Sep- 
tember, 1890;  that,  after  his  right  expired,  the  executors  gave 
him  "permission  to  pasture  upon  the  said  lands  his  gentle  band 
of  cattle,  consisting  of  50  or  60  head,  until  the  31st  of  Decem- 
ber, 1890,  in  consideration  of  the  said  defendant  watching  over 
the  place  and  keeping  the  cattle  of  all  other  parties  off;"  that  at 
the  time  of  giving  said  permission  the  executors  notified  the  de- 
fendant "that  he  must  remove  his  cattle  on  the  31st  day  of  De- 
cember, 1890,  and  that  under  no  consideration  was  the  defendant, 
Duhart,  to  keep  or  to  allow  any  sheep  to  run  upon  the  said 
ranch,  and  that  was  the  only  permission  given  the  defendant,  b}' 
either  of  the  executoi-s,  to  be  or  have  his  cattle  upon  the  said 
ranch  after  Sept.  1,  1890;"  that  a  few  days  after  Sept.  1st,  one 
of  the  executors  told  the  defendant  to  remove  his  cattle  from 
the  ranch,  and  that  he  gave  said  executor  "to  understand  that 
he  had  removed  them,  though  he  did  not  state  so  in  so  many 
words,  (he  stated  that  he  had  sold  them,  or  was  about  to  sell 
them;)  that  the  defendant  permitted  2,000  head  of  sheep,  300 
head  of  cattle,  and  25  head  of  horses  belonging  to  him  to  graze 
upon  the  land  in  question  from  Jan.  1,  1891,  until  April  17, 
1891 ;  that  neither  the  plaintiff  nor  the  executore  had  knowledge 
of  the  fact  that  the  plaintiff's  (defendant's?)  sheep,  cattle,  and 
horses  were  upon  the  lands  subsequent  to  December  31st,  1890, 
but  supposed  that  he  had  removed  them  from  the  premises,  in  ac- 
cordance with  his  instructions,  and  that  they  did  not  know  that 
he  had  abused  the  privilege  granted  to  him  on  or  about  Sept.  1, 
1890 ;  that  the  lands  described  in  the  complaint  were  uninelosed 
pasture  lands,  and  that  neither  plaintiff  or  any  one  on  his  be- 
half took  possession  of  the  land  or  any  part  thereof  until  about 
the  12th  day  of  April,  1891;  that  plaintiff  has  sustained  dam- 
ages in  the  sum  of  $900  by  reason  of  the  wrongful  act  of  the 
defendant,  as  charged  in  the  complaint. 


Sec.  2.]  rogeks  v.  duh^vrt.  87 

The  briefs  are  devoted  chiefly  to  a  discussion  of  the  question 
whether  an  action  trespass  quare  clausum  f regit  can  be  main- 
tained by  one  who  was  not  in  the  actual  possession  of  the  land 
at  the  time  the  acts  complained  of  were  performed.     The  re- 
spondent refers  to  cases  showinjj  that  actual  possession  is  not  in 
all  cases  essential,  and  the  appellant  insists  that  the  exceptions 
are  confined  to  cases  in  which  the  plaintiffs  were  the  owners, — 
where  the  title  draws  to  it  the  possession  for  the  purpose  of  re- 
dressing injuries  to  the  estate.     It  would  be  a  useless  thing  to 
attempt  to  reconcile  the  cases  on  this  subject.     Decisions  ad- 
hering to  the  common  law  rule.s  of  pleading  are  seldom  of  any 
value  in  determining  the  sufficiency  of  a  pleading  under  the 
code,  and  sometimes  lead  to  serirms  departui-es  from  its  letter  ^^,,.^^^3^  tW^ 
and  spirit.    ^\  ith  us,  mere  forms  of  action  are  cast  aside.  Every  C  (-«rwW»>/v<A^  ^ 
action  is  now  in  effect  a  special  action  on  the  case^  (Jones  v.    c-«>-*j-^v •  v« 
Cortes,  17  Cal.  487;  Goulet  v.  Asseier,  22  X.  Y.  225;  Matthews  '^  V*--^^^^--- 
v.  McPherson,  63  N.  C.  189;  Brown  v.  Bridges,  31  la.  145;)  and  ^"^'^  J^* 
the  rigid  formalism  and  subtle  distinctions  found  in  the  rules 
governing  the  common  law  forms  of  action  are  as  inapplicable 
and  inane  under  the  modern  i)lan  of  procedure  as  the  highly 
dramatic  speech,  senseless  repetitions,  and  symbolic  gestures  of 
the  formulae  prescribed  for  the  five  forms  of  the  civil  actions   l^-^  =v-->-* 
by  the  decemvirs  of  ancient  Rome.     Does  the  complaint  state   '»-^>'»-'-j>-  *^~ 
in  ordinary  and  concise  language  facts  sufficient  to  constitute  a    •^-^-•^^'^J^-^^ •> 
cause  of  action?     That  is  the  question,  and  not  whether  it  is 
sufficient  to  show  trespa.ss  quare  clausum,  trespass  vi  et  armis. 
or  any  other  technical  form  of  action,  ex  delicto  or  ex  contractu. 
The  common  law  rule  is  that,  if  plaintiff  declare  in  trespass 
quare  clausum  where  the  action  should  be  case,  he  will  be  non-c>a  V*-^^  <^ 
suited  at  the  trial ;  but  under  our  system,  if  the  facts  alleged-^  ■^r-*^>^  ^^ 
and  proved  are  such  as  would  have  entitled  the  plaintiff  to  re-  X^-^*^  «^:iii:^  **; 
lief  under  any  of  the  recognized  forms  of  action  at  common  '^°~-'^*^'^  *%  "^ 
law,  they  are  sufficient  as  the  basis  of  relief,  whatever  it  may  ^?^''-®^''^^  •  '^-^ 
be.     The  bill  of  exceptions  herein  states  facts  AvhicTi  would  pr\-  ^^"^'^^ 
titlejlaint[ff  to  relief  in  an  action  on  the_case,  which  include.s  u^.x-^V^^^ 
Torts  not  committed  with  force,  actual  or  implied,  injuries  com-  X^ 
mitted  to  property  of  which  plaintiff  has  the  reversion  only, 
and  in  fact  all  injuries  not  provided  for  in  other  forms  of  ac-  '-^'-^ 

tions.  The  fact  that  the  plaintiff  alleges  he  was  in  possession  is  ci-0»-^-^K-to-rN 
immaterial.  The  allegation  may  be  treated  as  surplusage.  *'Su-  ^^^^!ZTX!^X1 
perfluity  does  not  vitiate. "    "  The  nature  of  the  right  of  action  „^  a..^a-«jla/^ 


88  NATURE    AND    FORMS    OF    ACTIONS.  [ClIAP.    I. 

has  not  been  changed,  nor  has  the  amount  of  damages  recover- 
able been  effected ;  but  the  special  and  the  technical  rules  which 
govern  the  use  of  the  two  common  law  actions  mentioned  (tres- 
pass and  case)  have  certainly  been  abrogated."  Pom.  Rem.  & 
Rem.  Rights,  §  232.  The  damages  recoverable  in  the  common 
law  action  of  trespass  quare  clausum  are  for  the  wrong  done  to 
the  plaintiff's  possession  as  well  as  to  the  inheritance,  and,  where 
the  entry  is  with  actual  force,  treble  damages  are  frequently 
allowed.  While  the  plaintiff  is  not  permitted  to  recover  such 
damages  under  the  facts  proved  in  the  case,  he  is  certainly  en- 
titled to  recover  such  damages  as  would  have  been  recoverable^ 
if  the  action  were  the  common  law  ''action  of  case."  To  hold 
that  the  plaintiff  could  not  recover  would  be  to  restore  the  old 
distinctions  between  these  technical  actions.  Section  232,  supra, 
note  2.  There  is  nothing  decided  in  any  of  the  cases  upon 
which  the  appellant  relied  opposed  to  the  views  which  we  have 
expressed.  The  statements  upon  this  subject  in  Ilolman  v.  Tay- 
lor, 31  Cal.  340,  and  Pollock  v.  Cummings,  38  Cal.  685,  are 
dicta.  In  Uttendorfer  v.  Saegers,  50  Cal.  497,  it  was  alleged 
that  the  defendant  forcibly  entered  upon  the  premises,  and  tore 
down  the  buildings,  etc.  It  was  claimed  by  the  appellant  that 
the  action  was  trespass  quare  clausum.  Respondent  denied  this, 
asserting  that  it  was  an  action  by  the  owner  for  damages  done  to 
the  inheritance.  The  court  held  with  the  appellant,  but  did  not 
hold  that  the  action  could  not  be  maintained  unless  the  plain- 
tiff was  in  possession.  The  case  simply  holds  that  evidence  of 
the  possession  of  the  tenant  was  material  on  the  question  of 
damages.  The  question  of  the  sufficiency  of  the  complaint  or 
of  the  facts  found  to  constitute  a  cause  of  action  in  case  was  not 
considered  in  any  of  the  cases  referred  to.  In  Heilbron  v.  Hein- 
lon,  72  Cal.  371,  (14  Pac.  22),  the  court  held  that  the  defend- 
ants were  entitled  to  show  that  at  the  time  of  the  acts  charged 
in  the  complaint  they  were  in  quiet  and  peaceable  possession  of 
the  land,  claiming  the  same  under  certificates  of  purchase  and 
patents,  and  had  continuously  used  and  occupied  it  for  10  or  11 
years  prior  to  the  commencement  of  the  action.  The  decision 
followed  the  doctrine  announced  in  Page  v.  Fowler,  37  Cal.  100, 
viz. :  that  a  personal  action  cannot  be  made  the  means  of  litigat- 
ing and  determining  the  rights  to  the  possession  of  real  prop- 
erty, as  between  conflicting  claimants^  In  Bank  v.  Turman, 
(Cal.)  30  Pac.  Rep.  966,  it  appeared  that  the  plaintiff  did  not 


gj,(,   2.]  ROGERS  V.  DUU.VRT.  ^^ 

have  title,  and  he  neither  had  possession  nor  the  right  of  pos- 
session,      n  the  case  at  bar  there  is  no  pretense  that  the  defend- 
aLTwas  clainnng  adversely  to  any  one.    He  -^ff^fl^^^^' 
ses  promptly  upon  receiving  a  written  notice  on  behalf  of  plain- 
tiff demanding  possession,  and  so  states  in  his  ^^^^^^-^/f  ^ 
never,  at  any  time,  after  Sept.  1st,  1890.  a  tenant     Admitting 
that,    vhen  a  tenancy  is  shown,  the  presumption  from  his  con- 
inu  d  possession  is,  that  he  holds  in  the  same  capacity^  there 
here  sho'vn  an  express  agreement,  by  the  ^e-s  of  which  he  J 
simply  to  have  the  privilege  of  pasturing  oO  or  60  head  of  cattle 
on  the  land,  in  consideration  of  his  services  in  caring  for  the 
property,  and  seeing  that  other  stock  did  not  trespass  on  the 
and.    The  presumption  is,  therefore,  overcome.    Bertie  v.  Beau- 
mont,  16  Eist,  33.    Defendant_contends  that  he  was  a  tenant  at  ^ 
sufferance  after  Dec.  Sl,m\,  but  this  is  a  mistake ;  he  was^ 
^Zser.^^r^l^^^  3    IIUl,   90;   Robertson  v.  ^_^^ 

Cporma  7  N~  H  308.  His  passession  was  the  possession  ot  his  y^  ,3^  )^ 
emplover  He  could  not  have  maintained  an  action  against 
anvone  for  trespass,  nor  would  he  have  been  a  necessary  party 
pkintiff  with  the  owner  in  a  suit  to  recover  damages  or  an 
injurv  to  the  property.  Ogden  v.  Gibbons,  o  N.  J^  La^v  .3J9. 
Whether  he  be  regarded  as  a  servant  or  licensee,  the  result  1. 
the  same.  He  was  there  for  a  particular  purpose,  and  the  mo- 
ment he  abased  the  privilege,  or  committed  any  act  b.stile  to 
the  interest  of  his  employer  or  licensor,  he  became  a  trespasser. 
Lvford  V.  Putnam,  35  N.  H.  563;  Looram  v.  Burlmgame,  16  La^ 
Ann.  199;  People  v.  Fields,  1  Lans.  222;  Haskin  v.  Record,  32- 

Vt.  575. 

Judgment  and  order  affirmed.  j)^    ^^Sl*:^-'^- 


JOSEPH  DESSERT  LUMBER  CO.  v.  WADLEIGH. 

103  Wis.  318.     [1899.] 

Action  by  the  Joseph  Dessert  Lumber  Co.  against  ^I^tth';^  ^^^^^ 
Wadleigh.    There  was  a  judgment  of  non-suit,  and  the  plaintiff  .^^u^^ 

brings  error.     Affirmed.  ^_^/^>s-..^- 

'The  complaint  in  this  action,  omitting  the  ^rmal  allega  ions     ^^-^ 
is  as  follows:    "That,  during  the  winter  of  1896  and  189/.  the 
defendant  unlawfully,  and  with  force,  broke  and  entered  upon 


90  NATURE    AND    FORMS    OF    ACTIONS.  [ClIAP.    I. 

the  plaintiff's   land  in  the  county  of  ^Marathon,   and  state  of 
Wisconsin,  known  and  described  as  follows,  to-wit:     Lots  6  and 
16  of  section  18  in  township  26  north,  of  range  9  east,  and  there 
cut  down  and  carried  away  trees  and  timber  belonging  to  the 
plaintiff,  of  the  value  of  $170,  and  converted  and  disposed  of 
the  same  to  his  own  use,  to  the  damage  of  the  plaintiff  $170." 
The  answer  was  a  general  denial.     On  the  trial,  plaintiff  made 
proof  that  about  15,000  feet  of  timber  had  been  cut  on  the  lands 
described;  that  eight  of  these  logs  were  found,  with  a  lot  of 
other  logs,  banked  on  Plover  River,  about  three  miles  from  this 
land;  that  the  stumpage  value  was  $4  to  $5  per  1,000  feet,  and 
the  logs  on  the  bank  werc  worth  about  $8  per  1,000  feet;  and 
zX^-<r>x»^    that  the  logs  at  the  banking  place  had  been  cut  by  one  Luchia, 
oAAsi-oJc      and  had  been  sold  by  him  to  defendant  on  the  bank.     It  was 
A  Vs_^-wA/^*^  admitted  that  the  defendant  got  the  logs  that  were  on  the  bank, 
*-*  ^  drove  them  to  his  mill,  sawed  them  into  lumber,  and  sold  the 

lumber.  At  the  close  of  plaintiff's  testimony,  the  defendant 
moved  for  a  non-suit,  on  the  ground  that  the  cause  of  action 
^  .  wvxrvN  -  stated  was  for  injury  to  the  lands,  and  no  proof  had  been  of- 
i_^  V»*3^sivN}  fercd  to  connect  the  defendant  with  the  cuttiog,  or  transporta- 
tion of  the  logs  from  the  land.  This  motion  was  granted,  and 
a  judgment  for  costs  was  entered  in  favor  of  tlie  defendant. 
Plaintiff'  brings  the  case  to  this  court  by  writ  of  error. 

Bardeen,  J.  (after  stating  the  facts).  While  it  is  true  that 
the  code  has  abolished  the  distinctions  between  actions  at  law 
and  suits  in  equity,  and  has  provided  that  there  shall  be  but  one 
form  of  action  for  the  enforcement  and  protection  of  private 
rights  and  the  redress  and  prevention  of  private  wrongs,  yet 
there  still  exist  certain  elements  or  features  pertaining  to  ac- 
tions -vvhich  are  unchanged  thereby.  These  do  not  belong  to  the 
action  as  a  judicial  instrument  for  establishing  a  right,  but  in- 
here to  and  belong  to  the  primary  and  remedial  rights  them- 
selves. For  the  enforcement  and  protection  of  these  rights  but 
one  form  of  action  exists,  but,  as  to  the  remedies  which  lie  back 
of  all  forms  of  actions,  the  law  still  recognizes  and  observes  dis- 
tinctioDs  w'hich  are  as  vital  as  before  the  code.  It  is  just  as 
necessary  today  as  it  ever  was  that  a  suitor  should  so  state  his 
cause  of  action  that  the  court  may  determine  whether  it  be  ex 


contractu  or  ex  delicto.  In  the  one  case  the  plaintiff  would 
have  to  be  satisfied  with  a  mere  money  judgment,  wiiile  in  the 
other  an  order  of  arrest  might  issue,  and  an  execution  against 


\ 


Sec.  2.j  dessert  lumber  co.  v.  w^utLEicn.  91 

the  body.  This  certainty  of  statement  i.s  also  important  for  the 
purpose  of  determining  the  proper  tribunal  for  the  trial  of  the 
action.  Under  the  law,  certain  actions  are  local  to  the  extent 
that  the  trial  thereof  may  be  compelled  in  the  county  where  the 
property  affected  is  situated.  It  is  therefore  quite  essential  that 
the  complaint  should  be  sufficiently  specific  in  allegation  as  to  en- 
able~tlie  l)arties  and  the  court  to  say  whether  the  action  be  local 
or  transitory^  It  is  these  primary  rights  created  by  the  law, 
and  the  wrongs  committed  against  them,  and  the  remedial  rights 
resulting  from  such  wrongs,  wliich  are  to  be  considered  in  the 
practical  administration  of  justice,  and  which  remain  unaffected 
by  the  reform  legislation.  When  a  complaint  is  presented  for 
judicial  inspection,  it  is  the  court's  first  duty  to  ascertain  the 
nature  of  the  cause  of  action  alleged,  as  well  to  protect  the 
rights  of  parties  as  to  the  place  of  trial  as  to  administer  the 
proper  remedy.  It  is  suggested  that  the  complaint  in  this  ac- 
tion has  a  double  aspect,  and  may  be  either  what  was  called  in 
the  old  practice  a  complaint  for  trespass  to  lands  or  one  of 
trover  for  the  conversion  of  the  timber.  The  language  of  Chief 
Justice  Dixon  in  Supervisors  v.  Decker.  30  Wis.  624,  seems  esj^ 
pecially  applicable  to  the  contention  of  the  plaintiff's  counsel  in 
that  regard.  He  says:  "It  would  certainly  be  a  most  anomal- 
ous and  hitherto  unknown  condition  of  the  laws  of  pleading, 
were  it  established  that  a  plaintiff  in  a  civil  action  could  file 
and  serve  a  complaint,  the  particular  nature  and  object  of  which 
no  one  could  tell,  but  which  might  and  should  be  held  good  as  a 
statement  of  two  or  three  or  more  diiTdTcnt  and  inconsistent 
causes  of  action,  as  one  in  tort,  one  upon  money  demand  on  con- 
tract, and  one  in  ecpiity,  all  combined  or  fu.sed  and  moulded 
into  one  count  or  declaration  ;  so  that  the  defendant  must  wait  the 
accidents  and  events  of  trial,  and  until  the  plaintiff's  proofs  are 
all  in.  before  being  informed,  with  any  certainty  or  definiteness, 
'what  he  is  called  upon  to  meet.  The  proposition  that  a  com- 
plaint, or  any  single  count  of  it,  may  be  so  framed  with  a  double, 
treble,  or  any  number  of  aspects,  looking  to  so  many  and  in- 
congruous causes  of  action,  in  order  to  hit  the  exigencies  of  the 
plaintiff's  case  or  any  possible  demands  of  his  proof  at  the  trial, 
we  must  sa}',  strikes  us  as  something  novel  in  the  rules  of  plead- 
ing." 

Counsel  for  plaintiff  in  error  contends  that  his  complaint  may 
be  considered  one  in  trover  for  the  recovery  of  the  value  of  cer- 


k^O^.<^\. 


92  NATURE    AND    FORMS    OF    ACTIONS.  [ClIAP.    I. 

;,^,^. c«rr«a<^yi- tain  timber  cut  from  the  plaintiff's  land.    He  admits  that  it  has 
'-^^^-'^^"^^"some  aspects"  of  a  complaint  in  trespass.     After  reading  the 
'^"'^!^'*"^*%()mplaint,  we  are  convinced  that  that  admission  was  advisedly 
made.    It  not  only  has  some  of  the  aspects  ot  such  a  complaint, 
but  the  very  likeness  of  such  pleading.  In  its  formal  allegations, 
it  is  almost  an  exact  reproduction  of  the  complaints  found  in  the 
form  books  for  injuries  to  real  estate  by  cutting  timber.     Abb. 
A  ^  ^-o-    Forms,  470.     It  has  all  the  attributes  of  a  complaint  fortres;: 
..^jO^^       pass  quare  clausunj.     It  alleges  the  entr>^  upon  the  plaintiff's 
^5^-*!^  —  land,  the  cutting  of  the  timber,  the  carrying  of  the  same  away, 
^.v«    -^j  ^  A    and  conversion  to  the  use  of  the  defendant.    It  was  no  doubt  in- 
tended for  just  what  it  appears  on  its  face  to  be, — a  complaint 
for  unlawful  entry  and  cutting  of    plaintiff's    timber.     There 
was  an  absolute  failure  of  proof  in  this  regard.    No  proof  was 
^  ^€>13xA^i.  offered  connecting  the  defendant  with  the  cutting  of  any  of  tlie 
" — ^  <=^^       timber,  or  with  any  entry  on  the  land.     But  it  is  said  that  a 
^  <\j\^-  j.p(,Qygj.y  ji^  ^]-^jg  case  could  "have  been  sustained  under  that  por- 
tion of  the  complaint  which  alleges  a  conversion  of  the  logs  by 
the   defendant.     The  allegation   that  defendant  converted  the 
logs  to  his  own  use  was  but  a  statement  of  damages  consequent 
to  the  illegaTentry  to"  the  land     A  very  similar  complaint  was 
considered  in  Merriman  v.  Machine  Co.,  86  Wis.  142,  (56  N.  W. 
743).     There  was  a  motion  to  make  the  complaint  more  definite 
and  certain,  on  the  grounds  that  it  alleged  trespass,  trover,  and 
conversion,  and  injury  to  business    credit.     The    court    said: 
''There  is  butane  cause  paction,  and  that  is  trespass  quare 
clausumjregit^  and  the  other  continuous  acts  of  the  defendants 
are  stated  as  the  consequential  damages  arising  therefrom  and 
connected  therewith."     The  argument  of  the  counsel  that  the 
complaint  was  framed  to  meet  all  the  contigencies  of  the  proof 
is  evidently  an  afterthought.    The  counsel  is  too  well  versed  in 
the  law  to  make  that  suggestion,  except  as  a  last  resort.     The 
plan  of  "hitting  it  if  it  is  a  deer,  and  missing  it  if  it  is  a  calf," 
does  not  prevail  in  legal  proceedings.    ' '  All  that  goes  to  the  ad- 
ministration of  justice  should  be  definite  and  certain.     This  is 
almost  equally  essential  to  the  claim,  the  defense,  and  the  judg- 
ment.    When  these  become  vague  and  loose,  the  administration 
of  justice  becomes  vague  and  loose,  with  a  tendency  to  rest,  not 
so  much  on  known  and  fixed  rules  of  law,  as  on  capricious  judg- 
ment of  the  peculiarities  of  each  case,  on  a  dangerous  and  ec- 
centric sense  of  justice,  largely  personal  to  the  judges,  varjdng 


VVr- 


K/V^     V->-4^    ^?\J^.,^yvJL^s_^s3L      ck-e'Vxv.yN-'N_^j,_jO^(U-^ 


Sec.  2.J  dessert  lumber  co.  v.  wadleigii.  93 

as  cases  vary,  rather  than  on  abiding  principles  of  right,  con- 
trolling equally  the  judgments  of  courts  and  the  rights  of  suit- 
ors."   Pierce  v.  Gary,  37  Wis.  232. 

Again,  it  is  said  that  the  evidence  of  the  conversion  came  in  "^'^  •  ^ 
without  objection  for  variance,  and  therefore  plaintitf  was  en-  T~^  ^^'^^ 
titled  to  judgment.     The   difficulty  with  this  position  is  that^*^^  va-*^^ 
such  evidence  was  proper,  under  the  complaint  to  show  conse-  ^\ 
quential  damages.     The  defendant  was  not  bound  to  anticipate  y^^ 
that  there  was  to  be  a  failure  of  proof  of  the  substantial  mat- 
ters alleged  as  a  basis  of  the  cause  of  action!^    Wlien  the  plain- ^ 
tiff's  case  ended,  he  took  the  only  course  open  by  moving  for  a 
non-suit  for  failure  of  proof.    The  plaintiff'  stood  upon  its  com-    ,^»j.v.„y3.^ 
plaint  as  being  one  for  conversion.     It  departed  entirely  from  -'-•>y>-^ 
the  original  purpose  and  scope  of  the  action,  and  jought  to  make 
the  allegation  of  consequent^ijj__damage  stand  as  the  substance 
o7  the  cause  of  action  alleged.     That  this  was  not  permissible 
seems  evident,  when  we  come  to  consider  that,  in  the  one  case, 
the  action  is  local,  and  triable  in  the  county  where  the  land  is 
situated ;  and,  in  the  other,  transitory  and  triable  in  the  county 
of  the  defendant's  domicile.     A  complaint  cannot  be  made  to 
serve  the  purpose  of  a  dragnet. 

It  is  further  suggested  that  the  action  can  be  supported  as 
one  under  section  4269,  Rev.  St.,  and  that  the  defendant  can  be 
made  liable  as  a  purchaser  of  the  logs  from  the  original  wrong- 
doer. That  section  refers  to  trespassers  and  purchasers  "with 
notice"  of  such  unlawful  cutting.  There  was  no  proof  that  thetio\-  «-'*^ 
defendant  had  any  such  notice.  So  far  as  the  evidence  dis- 
closes, the  defendant  was  an  innocent  purchaser  of  the  logs 
without  notice,  and,  \vithout  allegation  and  proof  connecting 
Fim  with  the  original  wrong  done,  the  action  cannot  be  sustained 
"under  that  section.  See  Tuttle  v.  Wilson,  52  Wis.  643,  (9  X. 
W.  822).  The  case  of  Swift  v.  James,  50  Wis.  541,  (7  N.  W.  't^^'^^^'^^ 
656),  comes  the  nearest  to  sustaining  the  plaintiff' 's  contention 
of  any  in  the  books.  It  is  an  extreme  case,  and  must  be  limited 
to  the  facts  as  therein  disclosed.  The  complaint  alleged  an  un- 
lawful entry  upon  lands  in  Michigan,  the  cutting  of  timber,  the 
carrying  away,  and  a  conversion  of  the  .same  in  the  cities  of 
Milwaukee  and  Chicago.  The  opinion  says  that,  while  the  com- 
plaint might  have  been  sustained  as  one  for  trespass  qua7'e  claii- 
sum,  if  the  action  had  been  brought  in  Michigan,  yet,  the  suit 
having  been  brought  in  this  state,  where  an  action  for  the  orio-- 


94 


NATURE    AND    FORMS    OF    ACTIONS. 


[Chap.  I. 


inal  trespass  could  not  be  maintained,  the  allegations  of  the  orig- 
inal trespass  might  be  treated  as  surplusage,  and  the  action  sus- 
tained here  for  conversion.  The  court  evidently  ignored  the 
principle,  recognized  in  Merriam  v.  Machine  Co.,  supra,  that  the 
allegation  of  conversion  was  merely  supplemental  to  the  trespass 
alleged,  and  inserted  to  allow  proof  of  the  consequent  damages. 
It  is  unnecessary  to  prolong  this  discussion.  We  feel  quite  clear 
that  thecause  of  action  alleged  is  for  injury  done  to  real  estate 
aiid,  there  being  no  proof  connecting  the  defendant  therewith, 
the  non-suit  was  proper.  The  judgment  of  the  circuit  court  is" 
affirmed. 


,  v^  ^ 


^ 


GOULET  V.  ASSELER. 

32  N.   Y.  225.     [I860.] 

Appeal  from  the  superior  court  of  the  city  of  New  York.  Ae- 
^'v'^'"''^  tion  for  taking,  selling  and  converting  to  the  defendant's  use 
'-^^^V^  a  quantity  of  wines,  liquors,  cigars  and  bar  furniture,  the  stock 
^^jj^jj,^  and  utensils  of  a  restaurant.  The  plaintiff  made  title  under  a 
53L*Si^  xi-T^'f^'-chattel  mortgage  executed  to  him  by  M.  Caussidiere  and  E.  Bon- 
^-**^ '^^-*^^"'^' nier ;  and  defendants  justified  under  a  judgment  and  execution 
against  the  mortgagors,  in  which  judgment  they  were  the  plain- 
tiffs, the  execution  being  levied  on  the  property  by  their  direc- 
tion. The  mortgage  was  dated  IMarch  19,  1855,  and  purported 
to  be  for  the  security  of  $1,200,  payable  in  one  year  from  that 
date.  It  contained  the  following  clause:  "And  until  default 
be  made  in  the  payment  of  the  said  sum  of  money,  we  (the 
mortgagors),  are  to  remain  and  continue  in  the  quiet  and  peace- 
able possession  of  said  goods  and  chattels,  and  in  the  full  and 
free  enjoyment  of  the  same."  The  principal  part  of  the  prop- 
erty, in  value,  was  wines,  liquors  and  cigars.  The  defendants 
were  prosecuting  their  actions  when  the  mortgage  was  executed, 
and  obtained  judgment  shortly  afterwards.  The  officer  sold 
the  goods  on  the  execution  on  the  27th  April,  1855.  The  sale 
was  in  different  parcels,  and  the  goods  were  delivered  by  the 
officer  to  the  respective  purchasers,  and  the  proceeds  were  paid 
to  the  defendants.  No  mention  was  made  of  the  mortgage  at 
the  sale,  though  the  defendants  had  been  informed  of  it  after 
the  le^'^^  and  ijefore  the  sale  took  place.     It  did  not  appear  that 


Sec.  2.]  goulet  v.  asseler.  95 

the  defendants  purchased  any  of  the  goods  at  the  sale.  The  ac- 
tion was  commenced  after  the  debt  mentioned  in  the  mortgage 
became  payable;  and  the  plaintiff  had,  after  that  time  and  be- 
fore  the  bringing  of  this  suit,  demanded  the  goods  of  the  de- 
fendants. The  character  of  the  complaint  and  of  the  evidence 
sufficiently  appears  from  the  following  opinion. 

The  defendants,  on  the  trial,  insisted  that  the  goods  were  sub- 
ject to  levy  on  execution  against  the  mortgagors,  and  that  the 
action  could  not  be  sustained.  The  jury  were  instructed  to  as- 
sess the  value  of  the  goods  and  to  give  their  verdict  for  the  plam. 
tiff  for  that  value,  subject  to  the  opinion  of  the  court,  with 
power  to  dismiss  the  complaint.  The  value  was  fixed  by  the 
jurv  at  $850,  and  the  court  at  general  term  gave  judgment  for 
the*  plaintiff  for  that  amount.  The  defendants  appealed.  The 
case  was  submitted  without  oral  argument,  on  printed  briefs. 

Selden,  J.  If  the  plaintiff  has  any  legal  remedy 
for  the  injury  of  which  he  complains,  it  is  clear  that 
the  remedy  has  not  been  properly  pursued  in  the  present 
case,  and  that  the  judgment  therein  cannot  be  sustained  consist- 
ently with  the  well  established  principles  of  the  common  law, 
and  the  repeated  decisions  of  this  court.  The  difficulty  in  the 
case,  and  the  error  of  the  court  below,  will  be  most  readily  seen 
and'appreciated  by  reference  to  some  of  the  distinctions  between 
those  forms  of  action  which  the  code  has  abolished.  It  can 
hardly  be  claimed  that,  prior  to  the  code,  an  action  of  trespass 
or  trover  could  have  been  maintained,  either  against  the  offi- 
cer or  the  plaintiff  in  the  execution,  under  the  circumstances 
here  disclosed.  The  case  would  have  fallen  directly  within  the 
principles  of  the  case  of  Gordon  v.  Harper  (7  Term.  R.  9),  and 
the  subsequent  cases  of  that  class  which  have  never  been  de- 
parted from,  either  in  England  or  in. this  country.  If  any  action 
would  have  lain  before  the  code,  it  could  only  have  been  an  ac- 
tion founded  upon  the  special  circumstances  of  the  case,  setting 
forth  the  injury  to  the  contingent  interest  of  the  plaintiff  in 
the  property,  and  claiming  damages  for  such  injury. 

While,  however,  in  such  an  action,  the  plaintiff  would  have 
avoided  the  effect  of  the  technical  rule  that,  in  order  to  recover 
in  trespass  or  trover,  he  must  show  that  he  had  either  the  actual 
possession  or  the  right  of  the  possession  at  the  time  of  the  al- 
leged taking  or  conversion,  he  also,  supposing  that  the  action 
could  have  been  maintained,  would  have  imposed  upon  himself 


96  NATURE    AND    FORMS    OF    ACTIONS.  [CUAP.    I. 

the  necessity  of  proving,  specifically,  the  damages  which  he  had 
sustained.  In  trespass  and  trover,  before  the  code,  the  plaintiff 
recovered,  if  at  all,  upon  the  ground  that  he  was  the  owner  of 
the  property  in  controversy.  The  measure  of  damages,  there- 
fore, in  all  such  cases,  was  the  value  of  the  property  taken  or 
converted.  Although  it  appeared  that  the  plaintil!  held  the  title 
as  mere  security  for  a  debt,  and  that  his  debtor  was  abundantly 
ably  to  pay,  so  that  his  actual  loss  was  nothing,  his  recovery, 
in  cases  where  he  recovered  at  all,  was  nevertheless  for  the  full 
value  of  the  property,  provided  that  did  not  exceed  the  amount 
of  his  lien.  In  a  special  action  on  the  case,  on  the  contrary,  the 
plaintiff  could,  under  no  circumstances,  recover  more  than  the 
damages  shown  to  have  been  actually  sustained.  He  must  prove 
to  what  extent  his  security  was  impaired,  by  showing  whether 
the  debtor  was  or  was  not  responsible,  and  whether  or  not  it 
Avas  still  in  lus  power  to  follow  and  enforce  his  lien  against  the 
property. 

Although  the  code  has  abolished  all  distinctions  between  the 
mere  forms  of  action,  and  every  action  is  now  in  form  a  special 
action  on  the  case,  yet  actions  vary  in  their  nature,  and  there 
are  intrinsic  differences  between  them  which  no  law  can  abolish. 
It  is  impossible  to  make  an  action  for  a  direct  aggression  upon 
the  plaintiff's  rights  by  taking  and  disposing  of  his  property, 
the  same  thing,  in  substance  or  in  principle,  as  an  action  to  re- 
cover for  the  consequential  injury  resulting  from  an  improper 
interference  with  the  property  of  another,  in  which  he  has  a 
contingent  or  prospective  interest.  The  mere  formal  differences 
betAveen  such  actions  are  abolished.  The  substantial  differences 
remain  as  before^  The  sameproof,  therefore,  is  required^  in  each 
of  these  tw^o  kinds  of  actions  as  before  the  code,  and  the  same 
^,_^\,._„^^  s~)  rule  of  damages  applies.  Hence,  in  an  action  in  which  the 
,jx^  -wJi»<,).»A>» plaintiff  establishes  a  right  to  recover,  upon  the  ground  that  the 
defendant  has  wrongfully  converted  property  to  the  possession 
of  which  the  plaintiff  was  entitled  at  the  time  of  the  conversion, 
the  proper  measure  of  damages  still  is,  the  value  of  the  prop- 
erty; while  in  an  action  in  which  the  plaintiff  recovers,  if  at 
all,  upon  the  ground  that  the  defendant  has  so  conducted  him- 
■^"'^T*^  self  in  the  exercise  of  a  legal  right  in  respect  to  another's  prop- 

"'^^"'''^^^^^^^  ■  erty,  as  unnecessarily  and  improperly  to  reduce  the  value  of  a 
^f,,^_,..,^,a.,i^  X^     lien,  which  the  plaintiff  could  only  enforce  at  some  subsequent 


Sec.  2.]  goulet  v.  asseler.  97 

day,  the  damages  must,  of  course,  depend  upon  the  extent  to 
which  that  lien  has  been  impaired. 

If  we  apply  these  principles  to  the  present  ease,  the  error  in 
the  judgment  under  review  becomes  apparent.     The  complaint  ^^^'"^'^V^ 
is,  in_substanoe,  the  same  as  a  declaratiim  ^"  trovpr,  niwUn-  thf^   "~^  ^j,,,,^^*. 
former  system  of  pleading.     It  is  true  that  it  sets  out  the  mort-  ,^^_„jw>.-  s 
gage  as  well  as  the  judgment  and  execution  obtained  by  the  ^^,_»^^    Vv 
defendants,  and  the  proceedings  under  them ;  but  the  gist  of  ,^.ucX>jf^  ^ 
each  of  the  counts  is,  that  the  defendants  have  taken  the  prop-  -->o-'-*^- 
erty  of  the   plaintiff,   and  converted  and  disposed  thereof  to 
their  own  use.    The  form  of  the  complaint  in  this  respect  would 
be  of  no  importance,  provided  the  proof  had  been  such  as  to 
entitle  the  plaintiff  to  the  judgment  rendered.     This  court  will 
not  reverse  a  judgment  simply  because  the  case  made  by  the  evi- 
dence varies  from  that  set  forth  in  the  complaint,  where,  as  in 
this  case,  no  objection  was  taken  on  that  account  at  the  trial. 
If  it  appears  that  the  proof  was  sufficient  to  entitle  the  suc- 
cessful party  to  the  iudtrment  actually  given,  such  judgment 
will  be  sustained.    Here,  however,  the  proof  could,  at  must,  onlv 
flnt)inri7<^  tVip  p1flintiff_fo  recover  the  consequential  damages  re- 
sulting to   the  contlugent   interest   under  the  mortgage;   while 
the  damages  were  assessed  and  the  judgment  rendered  upon 
the^a.ssumption  that  he  was  the  owner  of  the  property  and  en- 
"titied  to  the  immediate  passession.     *     *     * 

Judgment  reversed  and  a  new  trial  awarded. 


V- 


*^. 


WHITE  V.  LYONS. 

42  Cal,  279.     [1871.] 

The  complaint  in  this  case,  after  setting  forth  facts  entitling  CUrvw^ls^ 
him  to  judgment  jt  law  against  the  defendant,  prayed  for  an  ^  "'^^'^^ 
accounting  that  defendant  might  be  adjudged  to  play  to  plain-  T^^^ ,  a 
tiff,  in  gold  coin,  what  might  appear  on  such  accounting  to  be  3.,^,^^^  cf^ 
due,  and  for  general  relief.  To  this  defendant  demurred,  ori':^'*-^^-^^'^'^ 
the  ground  that  it  did  not  state  facts  sufficient  to  constitute  a  ,;^^^^^x»^ 
cause  of  action.  The  demurrer  being  overruled,  and  an  answer  ^.^jj^^jjj. . 
put  in,  there  was  a  trial  before  the  court,  and  a  judgment  ren-  i^T^  ^^ 
dered  on  November  18th,  1868,  in  favor  of  plaintiff,  for  the 
7 


98  NATURE    AND    FORMS    OF    ACTIONS.  [OhAP.    I. 

sum  of  one  thousand  six  hundred  and  thirteen  dollars  and  sev- 
enty cents,  and  interest  at  the  rate  of  ten  per  cent  per  annum 
on  nine  hundred  and  thirteen  dollars  and  seventy  cents  thereof, 
from  November  18th,  1863,  and  on  seven  hundred  dollars  there- 
of from  July  1st,  18G4, — in  all  two  thousand  three  hundred  and 
seventy-six  dollars,  in  gold  coin, — the  judgment  to  draw  inter- 
est at  seven  per  cent  per  annum.  Findings  were  filed  sustain- 
ing the  judgment.  The  defendant  moved  for  a  new  trial,  which 
was  denied,  and  he  then  took  this  appeal  from  the  judgment. 

By  the  court,  Crockett,  J.: 

The  demurrer  to  the  complaint  was  properly  overruled.  Un- 
der the  code  there  is  but  one  form  of  action  in  this  state,  and 
if  the  complaint  states  facts  wiiich  entitle  the  plaintiff  to  relief, 
either  legal  or  equitable,  it  is  not  demurrable  on  the 
ground  that  it  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  If  the  facts  stated  are  such  as  address  themselves  to 
the  equity  side  of  the  court,  the  appropriate  relief  will  be 
granted  by  the  court,  sitting  as  a  court  of  equity.  On  the  other 
hand,  if  the  facts  alleged  are  purely  cognizal)le  in  a  court  of 
law,  the  proper  relief  will  be  administered  in  that  form  of  pro- 
ceeding. But  a  complaint  which  states  a  sufficient  cause  of  a(> 
tion,  either  at  law  or  in  equity,  is  not  demurrable  as  not  statmiT 
l'acts~siTnT(M('ut  to  constitute  a  cause  of  action^  In  this  case  the 
defeiidaiit  does  not  question  the  sufficiency  of  the  facts  alltged 
to  constitute  a  cause  of  action  in  a  proceeding  at  law,  but  in- 
sists that  this  complaint  is  a  bill  in  equity,  and  that  a  court  of 
equity  has  no  jurisdiction  of  the  case.  In  that  event,  the  court 
will  treat  it  as  an  action  at  law,  and  administer  the  proper  re- 
lief in  that  form  of  proceeding. 

Judgment  affirmed.* 


>KUSH    V.    BROWN. 

101  Mo.,  586.    [1890. \ 

This  is  an  appeal  from  the  decision  of  the  circuit  court  of 
Buchannon  county,  sustaining  defendant's  demurrer  to  plain- 
tiff's amended  petition  for  specific  performance  of  an  agree- 
ment to  convey  the  real  property  of  the  respondent,  Mary  L. 


^»_ 


*  Compare   Mulholland   v.   Rapp,  50  Mo.  42, 


Sec.  2.]  rush  v.  brown.  99 

Brown,  a  married  woman,  held  as  her  legal  (not  statutory  or 
separate)  estate.    Defendants  are  husband  and  wife. 

The  material  facts  on  which  relief  is  asked  in  the  petition  are  v_ 

these :     That  before  the  25th  day  of  February,  A.  D.  1887,  the 
defendants,  and  each  of  them  jointly  and  in  the  presence  oi  ^j_^\^  ^  ^^ 
each  other,  made,  constituted  and  appointed,  and  by  their  dec-  ^^^.sjruX-  -t^- 
laration,  by  parol,  lawfully  authorized  one  Owen,  as  their  agent,  r\s-»J^  s»>»-^ 
to  sell  for  them  the  parcel  of  land  in  controversy,  upon  certain  co3^-*yiA  ^ 
terms,  for  the  price  of  twelve  thousand  dollars ;  that  on  the  25th  7"*^*^  "^^^ 
of  February,  1887,  and  while  such  agency  was  still  in  full  force,        g,^.   % 
said  Owen,  in  the  name  of,  and  as  such  agent  for,  said  defend-  vIXv  \^ 
ants,  sold  said  real  estate  to  plaintiffs,  upon  the  terms  aforesaid, "%  i ,  «-Tro  "^j 
and   plaintiff  paid   defendant's  said  agent  the   sum   of  three  c  V-«»-»-*^  >fJ 
thousand    dollars,   and   otherwise   complied   with   the   terms   of 
sale ;  that  at  the  time  of  the  payment  of  said  three  thousand 
dollars,  the  said  Owen,  as  the  agent  of  said  defendants,  de- 
livered to  plaintiff'  a  certain  memorandum  in  writing,  whereby 
the  defendants  acknowledged  the  receipt  of  said  sum  of  three 
thousand  dollars,  and  declared  that  the  same  constituted  the 
cash  payment  of  the  purchase  price  of  the  said  real  estate  that 
day  sold   plaintiff",  etc.,  to   which   memorandum  the  names  of 
the  defendants  were  signed  by  said  Owen,  as  aforesaid,  their 
agent  (which  memorandum  was  filed)  ;  that,  after  such  payment 
of  three  thousand  dollars,  the  defendants,  and  each  of  them, 
after  being  informed  of  the  payment  thereof,  and  the  making 
and  the  signing  of  said  memorandum,   each,   and   jointly  by 
parol,  ratified  and  affirmed  the  same,  yet  the  defendants,  and 
each  of  them,  ever  since  have  and  now  refuse  to  convey  the  same 
to  plaintiff  by  deed  in  proper  form. 

"Wherefore  the  plaintiff  prays  that  defendants  be  ordered 
by  this  court  to  make,  execute  and  deliver  to  plaintiff  their 
deed  in  common  form  with  usual  covenants  of  warranty  con- 
veying to  plaintiff  the  real  estate  aforesaid,  as  by  their  said 
note  and  memorandum  herewith  filed,  they  are  bound  to  do,  and 
that  plaintiff  further  recover  his  costs  in  this  cause  laid  out  and 
expended,  and  for  all  and  such  other  relief  as  should  be 
granted  in  the  premises." 

Barclay,  J. :  Under  our  statutes  and  the  uniform  construc- 
tion  of  them  that  has  for  many  years  prevailed,  a  married 
woman  cannot  be  compelled  to  specifically  perform  a  contract 


K/^^<f^ 


100  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

for  the  sale  of  her  legal  estate  in  land.    R.  S.  1889,  sects.  2396 
and  2397 ;  Shroyer  v.  Nickell,  55  Mo.,  264. 

So  well  established  is  this  rule,  that  we  are  disposed  to  stop 
with  the  briefest  announcement  of  it  rather  than  to  hazard 
obscuring  it  by  elaboration. 

II.  The  prayer  of  the  petition  here  is  for  specific  perform- 
ance and  general  relief.  A  general  demurrer  to  the  petition 
e.,,^,,^^  having  been  sustained  and  the  case  brought  here  in  that  shape, 
y.,^  pu^a^.  ih^_au_estion  arises,!^ can  plaintiff  obtain  a  reversal  because  the 
^ — a„,^  trial  court  did  not  enter  judgment  against  one  of  the  defend- 
,jvte»^:,vww,W  ants  (the  husband)  for  the  amount  of  the  purchase  money  paid 
j>^aAc>^  as  alleged?  ^o  prayer  for  such  a  recovery  is  contained  in  the 
-'-^^-"^  petition?)  That  is  evidently  framed  with  a  view  to  such  relief 
as  formerly  could  have  been  given  only  by  a  court  of  chancery 
as  distinguished  from  a  court  of  law. 

But  it  seems  to  be  imagined  that  any  kind  of  judgment 
(whether  legal  or  equitable  in  nature),  that  any  particular  facts 
alleged  may  warrant,  should  be  given,  under  our  code  of  pro- 
cedure, in  such  a  ease,  whether  asked  or  not.  We  do  not  assent 
to  that  view. 

One  of  the  purposes  of  the  code  is  to  substitute  specific 
and  concise  statements  of  the  actual  facts  of  each  controversy 
for  the  more  general  declarations  of  demands  formerly  in  use 
in  courts  of  law,  and  the  unnecessary  prolix  and  elaborate  plead- 
ings in  chancery.  The  object  in  view  is  to  have  the  defendant 
fully  advised  in  each  case  of  the  precise  complaint  he  is  called 
upon  to  meet. 

In  harmony  with  this  object,  it  is  provided  that  the  petition 
shall  contain  (among  other  things)  "a  demand  for  the  relief  to 
which  the  plaintiff  may  suppose  himself  entitled,"  and  that, 
"if  the  recovery  of  money  be  demanded,  the  amount  thereof 
shall  be  stated,  or  such  facts  as  will  enable  the  defendant  and 
the  court  to  ascertain  the  amount  demanded."  R.  S.  1889,  sec 
2039. 

It  is  obvious  that,  upon  many  states  of  facts  presented  to  a 
court  for  action,  divers  remedies  may  be  applicable,  some  strict- 
ly legal,  others,  perhaps,  equitable  in  nature.  It  would  be  a  de- 
parture from  the  true  spirit  and  meaning  of  the  code  to  require 
of  plaintiff  "a  plain  and  concise  statement  of  the  facts  con- 
stituting his  cause  of  action"  without  requiring  (at  some  stage 
of  the  case)  a  plain  statement  of  the  judicial  action  demanded 


Sec.  2.]  rush  v.  brown.  101 

thereon,  for  the  information  of  the  defendant  and  of  the  court. 

This  is  especially  true  where,  as  in  Missouri,  by  the  terms  of  W*^^-^**^  ^ 
the  constitution  (Const.  1875,  art.  2,  sec.  28),  the  right  of  trial    "^'^'' 
by  jury  is  preserved  inviolable  in  ordinary  cases  "for  the  re- 
covery of  money  only,  or  of  specific  real  or  personal  property" 
(Revised  Statutes,  1889,  sec.  2131),  usually  termed  actions  at/ 
law,  whereas  suits  formerly  cognizable  in  chancery  may  be  prop-/ 
erly  tried  without  a  jury. 

With  us  it  is,  therefore,  often  of  importance  to  all  concerned 
to  know  what  relief  plaintiff  demands,  in  order  to  determme 
the  proper  constitutional  mode  of  trial.  On  this  account,  it  is 
sometimes  necessary,  in  the  practical  administration  of  justice, 
to  recur  to  the  inherent  distinctions  between  legal  and  equitable 
rights  and  remedies,  and  to  insist  that  parties  asking  aid  of  the 
court  state  the  nature  of  the  relief  desired,  as  well  as  the  facts 
on  which  they  demand  it. 

It  is  the  duty  of  all  courts  to  so  construe  the  code  as  **to 
secure  parties  from  being  misled."  R.  S.  1889,  sec.  2117.  But 
it  is  obvious  that  parties  would  often  be  misled  as  to  the  real 
nature  and  issues  of  the  case  if  an  ordinary  judgment  at  law 
might  be  rendered  by  the  court  on  a  petition  praying  only 
equitable  relief,  without  other  notice  of  such  legal  demand  than 
the  supposed  case  in  equity  incidentally  disclosed. 

The  code,  no  doubt,  intended  to  abolish  many  distinctions 
with  respecT  to  forms  of  statement,  between  actions  at  law  and_ 
suits  in  equity,  and  to  empower  the  same  court  (if  necessary  in  ^ 

the  same  proceeding)   to  adjudicate  legal  and  equitable  rights  ^j,^^  ,  ..^ 
and  apply  thereto  legal  and  equitable  remedies,  but  it  does  not    — >— ^^  pv 
sanction^  and  should  not  be  so  interpreted  as  to  encourage~such '  "^T"^-*^-^^^^  ^ 
vagueness  and  uncertainty  in  the  petition  as  w^ould  leave^Tho"   ^..^^t^  ^ 
|dverse  party  and  the  court  m  doubt  as  tolh^Telief  dpniand^  V^^  ^^ 
"and  hence  as  to  the  mode  of  the  trial,   and  as  to  the  issues  1  Ov.^'^ 
which  would  be  material  and   decisive   in  it.     Humphreys  v./         ^ 
Milling  Co.  (1889),  98  Mo.  542. 

:Moreover,  we  review^  in  this  court  only  such  objections  to 
proceedings  as  have  been  expressly  decided  by  the  trial  court 
R.  S.  1889,  sec.  2302. 

Parties  who  wish  to  change  or  enlarge  their  demand  for  relief  '^'^'^o^-^^-  > 
should  do  so  by  amendment  or  otherwise  while  the  cause  is  be-    ^^^j*-*^  cn^ 
fore  the  trial  court,  at  least  in  those  instances  where  the  case  ^^'^^' 
goes  off  upon  demurrer,  for  the  general  provision  permitting 


1U2  NATURE    AND     FOUMS    OF     ACTIONS.  [ClIAP.    I. 

the  court  to  j^rant  "any  relief  consistent  with  the  case  made 
by  the  phiintifV  and  embnieed  within  the  issues."  (R.  S.  1SS9, 
sec.  2216)  can  have  no  proper  application  where  final  judj;- 
rnent  for  defendant  has  been  reached  on  demurrer.  In  that 
event  the  prayer  for  jjeneral  relief,  supplemental  to  one  for 
specific  performance,  cannot,  in  view  of  section  2039  (R.  S. 
1889),  be  construed  as  a  prayer  for  a  money  jud<,nnent. 

The  jud{.,'nient  of  the  trial  court  was  correct  and  is  affirmed, 
with  the  concurrence  of  all  the  membei*s  of  the  court.* 


V-  -^-v- 


EMERY  V.  PEASE. 

20  N.    Y.,  Ii2.     [18r>9.] 

Appeal  from  the  Supreme  Court.  The  complaint  set  out  an 
agreement  between  the  plaintiff  and  defendant,  by  which  the 
former  was  actinj::  as  a  superintendent  of  a  manufactory  of 
ai::ricultural  implements,  and  was  to  receive,  in  addition  to  a 
fixed  salary,  half  the  net  profits  of  the  business.  It  was  pro- 
vided that  the  net  profits  were  to  be  ascertained  by  deductinfi: 
from  the  j^'ross  receipts  various  enumerated  charp:es  and  ex- 
penses, and  all  losses  in  the  business,  includinj?  bad  debts.  The 
plaintiff  was  to  keep  the  books,  and  at  the  end  of  each  year  an 
accurate  account  was  to  be  taken  of  the  stock  and  business  of 
the  factory,  the  net  profits  ascertained  and  the  plaintiff's  com- 
pensation to  be  paid  in  cash  or  the  defendant's  notes  at  six 
months.  The  plaintiff  averred  that  he  served  as  superintendent 
one  year,  and  at  the  end  thereof,  with  the  knowledge  and  assent 
Oi  the  defendant,  he  made  out  an  accurate  account  and  inven- 
tory of  the  stock  and  business,  and  stated  an  account  of  the 
net  profits  of  the  business  according  to  the  stipulations  of  the 
agreement,  and  delivered  the  said  statement  in  writing  to  the 
defendant,  February  19,  1855,  to  which  he  made  no  objections, 
and  now  (the  complaint  was  verified  March  30,  1855)  has  the 
same  in  his  possession.  Breach,  that  defendant  refused  to  pay 
half  the  net  profits  stated  in  said  account,  which,  after  deduct- 
ing a  credit  admitted  by  the  complaint,  amounted  to  $6,544.62, 
for  which  sum,  with  interest,  judgment  was  demanded. 


*  See  also  Horn  v.  Luddington,  32  Wis.  73. 


^^^,   2.1  EMERY  V.   PE.VSE.  ^^^ 

The  answer  averred  that  the  entire  balance  claimed  by  the 
plaintiti  consisted  in  uncollected  demands  for  goods  sold  dur- 
ng  the  progress  of  the  business  upon  terms  of  credit  which  m 
most  instances  had  not  expired,  and  insisted  that  the  defendant 
was  not  liable  to  pay  any  sum  for  net  profits  until  the  demands 
<,utstanding  were  collected,  and  the  losses  to  happen  from  bad 
debts  deducted  therefrom. 

On  the  trial  at  the  Albany  Circuit  before  Mr.  Justice  Gould 
the  defendant  moved  to  dismiss  the  complaint  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  ot 
action.  The  judge  granted  the  motion,  holding  that  the  plain- 
tiff should  have  brought  his  action  for  an  accounting.  Ihe 
plaintiff  excepted,  and  the  judgment  against  him  having  been 
affirnu-d  at  general  term  in  the  third  di.striet.  app.-aled  to  this 

court.  ,  J 

COMSTOCK,  J. :    Regarding  tji^^mit^  nn  a.Hcm  at  law  accord- 
Uvr  to  the  distinction  b.-twi-.n  legal  and  e<iuitable  re.nrdies  which 
formerly  prevailed,  we  think  the  Supreme  Court  were  right  in 
holdin-  that  it  could  not  bujnajntain.-.l  upon  th.>  fn.-ts  nvem-d 
in  the" complaint.     Th.   pleadei^has  s.t  forth  some  matters  ot 
7;-idence  him^^P^M^hlH^Ta  ^slight  tendency  to  prove  that    he 
account  had  been  taken  and  the  balance  due  to  the  plain  iff 
ascertained  bv  the  parties  according  to  the   principles  of  the 
agreement    bJtween    them.      But    he  ^eems_careful^^ 
avoided  th.'  verv  eonclusion  of  fact  NNJiic-h  alone  woukUustitv 
T^^TiTtV^rtTie  recovery  nl  nn  ascertainTMland  adm.tt.-d  balance, 
tTT^dTTinit  th.- parties  had  statt-d  tlu-  a.-e.mnt  and  that  thr  stat.-- 
Tnent  \hus  madTi;^^;:^^ 

-^vTHdTl^^iSISuZ^^  that  the  plaintiff 

h^d^^^iiSTTluaement  and  delivered  it  to  the  defendant  who 
made  no  objections  to  it,  does  not  necessarily  establish  the  re- 
c.uired  conclusion  even  if  it  has  a  tendency  in  that  direction; 
and  conserpientlv  we  cannot  hold  that  the  fact  of  an  account 
stated  between  these  parties  has  been  pleaded  in  any  manner  or 
form  We  are  rer|uirecl_iind  we  arejdwavsjnelined  tO  give  a 
liberal  and  Ix-nlgn  eonstruT^tiou  t^M>JillJiIllx  ""^^^  ^he  present 
;^7m;  but  if  a  party  eTth^Ti^j^jj^gTl^j^^^ 
thP  ver^f^^r^^r^dildnnT^^^^  ^y^^  ^^"tent  him- 

l^nr^th  averrii-r  ^^^'^-'""^  ineonelusive  in  its  nature,  be  must 
y^^bTthr^^m^iaklM^^  ^^'^  ^'^'^•"^  ^^  n]Meeti*.Ii  bejimde  ilt  tlu; 
proper  time^ 


104  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

■viL,  £a^VflSv         But  if  an  account  of  uet  profits  has  not  been  taken  according 

^"-^^-^■^o  to  the  rule  furnished  by  the  agreement,  it  seems  to  us,  upon 

.^Avrwxx-.*       ^jjg  facts  stated,  that  the  plaintiff  is  entitled  to  such  an  account 

''^^''*^*"^^  and  then  to  recover  whatever  sum,  if  anything,  shall  appear 

IHic  stsSiA^^'^  ^^  ^^^^  ^^  ^^'^-     '^^^^  is  probably  not  the  view  in  which  the 

(i-JjSLfcVJU    suit  was  brought,  nor  is  it  in  accordance  with  the  prayer  of  the 

,.,ju^(,(»^^t>u««dr>  complaint.     But  relief  is  to  be  given  consistent  with  the  facts 

j~ow,a^  x^^^^w  stated,  although  it  be  not  the  relief  specifically  demanded  (Code, 

§  275)  ;  and  in  determining  whether  an  action  Avill  lie,  the  courts 

are  to  have  no  regard  to  the  old  distinction  between  legal  and 

equitable  remedies.     Those  distinctions  are  expressly  abolished 

(Code,  §  69).     A"  suit  does  not,  as  formerly,  fail  because  the 

plaintiff  has  made  a  mistake  as  ti)  the  form  of  the  remi'dy.     If 

the  ease  w'hich  he  states  entitles  him  to  any  remedy,  either  legal 

or  equitable,  his  complaint  is  not  to  be  dismissed  because  he  has 

prayed  for  a  judgment  to  which  he  is  not  entitled.     In  this  case 

the  plaintiff  was  to  be  paid  one-half  the  net  profits  of  a  certain 

^^jc^^business,  to  be  ascertained  by  an  annual  accounting  in  a  par- 

L  .  ticular  manner.    His  averments  are  too  feeble  to  show  that  any 

y<\-  Aa.,-*W  precise  sum  or  any  sum  at  all  is  due  to  him;  but  we  think  they 

^  Va-*>^         do  show  that  he  is  entitled  to  an  accounting  in  order  to  ascer- 

ij^-w^oys^  i   tain  whether  anything  and  how  much  is  due.    That  being  ascer- 

^juk^  ^"^^ained  by  appropriate  proceedings  in  the  action,  final  judgment 

A  WM'       ^^'^^^  ^^  given  accordingly. 

-xv  Vv^^        '^^€!  judgment  must  therefore  be  reversed  and  a  new  trial 


GOULD  v.  CAYUGA  NATIONAL  BANK. 

86  N.  Y.,  75.    [1881.] 

Earl,  J.:  This  action  w^as  brought  to  recover  damages  for 
the  alleged  breach  of  an  agreement  made  by  the  defendants  to 
return  to  the  plaintiffs  certain  United  States  bonds  loaned  by 
him  to  the  bank,  in  June,  1865,  the  defendant  being  surety 
for  the  bank.  The  defendants,  in  their  answer,  interposed 
several  defenses,  among  which  were  the  statute  of  limitations 
and  the  return  of  the  bonds  to  the  plaintiff.  They  also  set  up 
that,  before  the  commencement  of  the  action,  the  plaintiff  called 
upon  the  bank  for  the  return  of  the  bonds,  claiming  that  they 


Sec.  2.]  gould  v,  cayuga  nat.  bank.  105 

had  not  been  returned  to  him,  and  that  the  defendants  denied 
plaintiff's  claim,  alleging  and  claiming  that  the  bonds  had  been 
returned  to  him  by  the  bank,  and  that  thereupon  the  parties 
entered  into  a  compromise  agreement,  whereby  the  bank  agreed 
to  pay  the  plaintiff,  in  satisfaction  of  his  claim  against  it,  the 
sum  of  $25,000,  and  that  it  paid,  and  plaintiff  accepted,  that 
sum  in  satisfaction  of  his  claim  against  it  for  the  bonds  loaned. 

Upon  the  trial  the  plaintiff  proved  the  loan  of  the  bonds  and 
that  they  had  not  been  returned  to  him,  and  then  rested  his  case. 
The  defendants  then  proved  the  compromise  agreement,  and  the 
payment  of  the  $25,000,  and  rested  their  case.  The  plaintiff 
then  gave  evidence  tending  to  show  that  he  was  induced  to  enter 
into  the  compromise  agreement  by  the  fraud  of  the  defendants. 
The  plaintiff'  did  not,  prior  to  the  commencement  of  the  action, 
return  or  offer  to  return  to  the  bank  the  $25,000  paid  by  it. 
After  the  defendants  had  at  the  trial  taken  the  objection  that 
the  plaintiff*  had  not  returned  or  offered  to  return  the  money, 
and  at  the  close  of  the  evidence,  the  plaintiff  paid  into  court 
the  sum  of  $25,000,  with  the  interest  thereon  from  the  time  of 
the  payment,  and  at  the  same  time,  as  explanatory  of  the  pay- 
ment, filed  a  paper,  of  which  the  following  is  a  copy,  to-wit: 
' '  That  plaintiff  now  deposits  in  the  court  with  the  clerk  thereof 
the  sum  of  $35,159.72,  a  sum  etjual  to  a  certain  sum  of  $25,000, 
which  was  paid  to  the  plaintiff  by  the  defendant.  The  Caj'uga 
County  National  Bank,  or  by  Josiah  N.  Starin,  the  12th  day  of 
.pMarch,  1873,  as  set  forth  in  a  certain  receipt  or  instrument  of 
■  writing  of  that  date  mentioned  in  the  pleadings  and  proofs  in 
this  action,  and  the  interest  upon  such  sum  until  the  1st  day  of 
January,  1879.  The  said  deposit  being  made  under  the  follow- 
ing conditions:" 

First.  "That  said  deposit  shall  remain  in  the  custody  of  the 
court  and  not  paid  to  either  party  until  the  final  judgment  shall 
be  rendered  in  such  action.  The  court,  by  rendering  such  judg- 
ment  or  by  its  action  under  the  judgment,  shall  restore  such  de- 
posit to  the  plaintiff  unless  it  shall  be  determined  in  and  by 
such  final  judgment  that  the  defendant,  the  Cayuga  County  Na- 
tional Bank,  ought  to  recover  such,  the  said  sum  of  $25,000,  so 
paid  to  the  plaintiff  as  aforesaid,  in  which  case  the  sum  of 
money  herein  mentioned  shall  be  awarded  to  the  defendant,  the 
Cayuga  County  National  Bank." 

''Rollins  Tracey,  Plaintiff's  Attorney." 


106  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

This  deposit  was  made  more  than  five  years  after  the  payment 
of  the  money  to  the  plaintiff,  more  than  two  years  after  the 
plaintiff  had  discovered  the  fraud,  and  long  after  the  com- 
mencement of  this  action.  The  trial  court  found  that  the  loan 
was  made,  that  the  bonds  had  not  been  returned  or  replaced,  that 
the  compromise  agreement  was  made,  and  that  the  plaintiff  was 
induced  to  enter  into  it  by  the  fraud  of  the  defendants;  but 
it  decided  that  the  plaintiff  could  not  recover  because  he  did 
not  before  the  commencement  of  the  action  return  or  offer  to 
return  the  $25,000  paid  to  him  under  the  compromise  agree- 
ment, and  therefore  it  dismissed  his  complaint.  The  same  view 
was  taken  of  the  case  at  the  general  term,  and  as  we  are  of 
opinion  that  that  view  was  correct,  we  will  confine  our  attention 
now  to  its  consideration. 

The  compromise  agreement,  unless  annulled,  is  an  absolute 
bar  to  this  action.  It  is  a  general  rule  laid  down  in  the  text 
books  and  the  reported  cases  that  a  party  who  seeks  to  rescind 
a  contract  into  which  he  has  been  induced  to  enter  by  fraud 
must  restore  to  tho  gth^^-J^^^Y  whatever  he  has  obtained  by 
virtue  of  the  contract.  (Cobb  v.  Hatfield,  46  N.  Y.,  533.)  He 
cannot  retain  anything  he  received  under  the  contract  and  yet 
proceed  in  disaffirmance  thereof.  The  rule  is  laid  dowTi  in 
Evans  v.  Gale  (17  N.  H.,  573),  as  follows:  "If  one  has  been 
induced  to  make  a  contract  to  pay  money  or  to  deliver  anything, 
by  such  means  that  he  is  entitled  to  rescind  the  transaction,  he 
must,  in  order  to  do  so,  first  restore  to  the  other  whatever  may 
have  been  received  in  exchange  for  the  money  or  other  thing 
he  seeks  to  recover  back,  and  to  which  he  would  become  entitled 
as  his  own  property  immediately  upon  the  rescission  of  the  act, 
whose  proper  effect  would  have  been  to  vest  it  in  the  other 
party."  The  reason  of  the  rule,  as  stated  by  Chief  Justice 
Shaw  in  Thayer  v.  Turner  (8  Mete,  550)  is  that  "the  plaintiff, 
as  far  as  it  is  in  his  power,  shall  put  the  defendant  in  statu  quo. 
by  restoring  and  revesting  his  former  property  in  him,  without 
putting  him  to  an  action  to  recover  it,  before  he  can  exercise 
his  own  right  to  take  back  the  property  sold,  or  bring  an  action 
for  it."  And  as  stated  by  Chiet  justice  Jrarsons  in  Kimball  y~ 
Cunningham  (4  Mass.,  502),  "the  vendee  shall  not  compel  even 
the  fraudulent  seller  to  an  action  to  recover  back  the  property 
he  has  parted  with  in  the  exchange."  The  effect  of  the  avoid- 
ance of  an  agreement  on  the  ground  of  fraud  is  to  place  the 


Sec.  2.]  gould  v.  cayuga  nat.  bank.  107 

parties_in  the  same  position  as  if  it  had  never  been  made ;  and 
all  rights  which  are  transferred,  released  or  created  by  the 
agreement  are  revested,  restored  or  discharged  by  the  avoid- 
ance. 

Here  the  $25,000  was  not  paid  upon  any  debt  acknowledged 
to  be  due  the  plaintiff  from  the  bank.  The  bank  denied  the 
claim,  but  paid  the  money  to  settle  the  dispute,  and  hence  the 
plaintiff  obtained  it  solely  by  virtue  of  the  compromise  agree- 
ment. 

But  the  claim  of  the  plaintiff  is  that  because  it  was  finally 
determined  by  the  court  that  the  sum  paid  the  plaintiff  and 
much  more  was  due  to  him  from  the  bank,  the  fact  that  he  did 
not  return  the  money  furnished  no  defense  to  the  action.  It  is 
believed,  notwitlustanding  the  earnest  and  able  argument  of  the 
learned  counsel  for  the  appellant,  that  this  claim,  under  the 
circumstances  of  this  case,  has  no  sound  basis  of  principle  or  au- 
thority to  rest  upon.  *  *  *  (The  court  here  reviewed  a 
number  of  cases.) 

But  the  defrauded  party  need  not  rescind  and  sue  in  an 
action  at  law  for  the  consideration  parted  with  upon  the 
^fraudulent  contract.  He  may  bring  an  action  in  equity  to  re- 
scind the  contract,  and  in  that  action  may  have  full  relief. 
Such  an  action  does  not  proceed  as  upon  a  rescission,  but  pro- 
ceeds for  a  rescission.  In  such  a  case  it  is  sufficient  for  the 
plaintiff  to  offer  in  his  complaint  to  restore  to  the  defendant 
what  he  has  received,  and  the  rights  of  the  parties  can  be  fully 
regulated  and  protected  in  the  judgment  to  be  entered.  Such 
was  the  case  of  Allerton  v.  Allerton  (50  N.  Y.,  670). 

If  this  had  been  an  action  in  equity  to  rescind  the  contract, 
the  court  could  have  done  equity  between  the  partias  and  so 
moulded  its  judgment  as  to  accomplish  that  result.  It  could, 
if  needful,  have  brought  into  the  litigation  matters  pertaining 
to  the  trust  created  by  Starin  for  the  plaintiff" 's  benefit,  and  to 
that  end  could  have  ordered  that  Starin  and  the  trustee  be 
made  parties.  This  action  was  brought  as  an  action  at  law,  no 
mention  being  made  in  the  complaint  of  the  compromise  agree- 
ment or  of  the  $25,000  paid  to  the  plaintiff.  A  purely  legal  de- 
fense was  set  up ;  it  was  tried  as  an  action  at  law,  and  no  motion 
was  made  to  convert  it  into  an  equity  action. 

It_is_idle  to  say  that  the  distinction  between  legal  and  equit-  i  G,-*-^^*^*^ 
able  actions  has  been  wiped  out  by  the  modern  practice..     It  is       ^^^131*^^ 


108 


NATURE    AND    FORMS    OF    ACTIONS. 


[CilAP.    I. 


Vo»/vJ^ 


true  that  all  actions  must  be  commenced  in  the  same  way ;  that 
in  every  form  of  action  the  facts  constituting  the  cause  of  action 
or  defense  must  be  truly  stated;  that  fictions  in  pleadings  have 
been  abolished,  and  that  both  kinds  of  actions  are  triable  in  the 
same  courts.  But  the  distinction  between  legal  and  equitable 
actions  is  as  fundamental  as  that  between  actions  ex  coniraclit 
and  ex  delicto,  and  no  legislative  fiat  can  wipe  it  out.  (Reubens 
V.  Joel,  13  N.  Y.,  488;  Goulet  v.  Asseler,  22  id.,  225.)  At  any 
rate,  the  difference  between  an  action  to  rescind  a  contract  and 
one  brought,  not  to  rescind  it,  but  based  upon  the  theory  that  it 
has  already  been  rescinded,  is  as  broad  as  a  gulf.  They  de- 
pend upon  different  principles  and  require  different  judgments. 

Here  the  tender  of  the  money  into  court  at  the  close  of  the 
trial  would  have  been  sufficient  if  this  had  been  an  equitable 
action  for  a  rescission  and  relief  consequent  thereon.  But  the 
tender  having  been  made  after  the  action  was  commenerd  was 
insufficient  for  this  action.  Even  if  this  tender  had  been  made 
before  this  action  was  commenced7~it  would  have  been  insuf- 
ficient, as  it  was  not  a  tender  to  the  bank.  The  money  was  not 
offered  nor  restored  to  the  bank,  nor  placed  in  its  power.  It 
was  placed  in  the  custody  of  the  court  and  the  bank  could  not 
take  it.  To  entitle  a  party  to  proceed  as  upon  a  rescission  of  a 
contract  that  is  fraudulent,  the  tender  or  restoration  must  be  to 
the  other  party,  and  must  be  without  qualifications  or  conditions. 
Every  right  under  the  repudiated  contract  must  be  absolutely 
surrendered. 

The  conclusion  we  thus  reach  leaves  the  defrauded  party  with 
ample  remedies.  jOne  situated  like  the  plaintiff  can  rescind  by 
tendering  or  restoring  what  he  has  received,  and  then  commence 
his  action,  file  may  keep  what  he  has  received  and  sue  to  re- 
cover damages  for  the  fraud ;  (^  he  may  commence  an  action  in 
equity  to  rescind  and  for  equrtable  relief,  offering  in  his  com- 
plaint to  restore,  in  ease  he  is  not  entitled  to  retain,  what  he 
has  received.  These  actions  are  all  fundamentally  different. 
If  the  party  is  not  willing  or  able  first  to  restore  what  he  has 
received,  he  is  confined  to  one  of  the  last  two  remedies.     *     *     * 

Judgment  affirmed. 


Sec.  2.]  LACKLAND   V.    GARESCHE.  109 

LACKLAND  v.  GARESCHE. 
56  Mo.,  267.    [1874.] 

Adams,  Judge,  delivered  the  opinion  of  the  court. 

This  was  an  action  by  attachment,  brought  by  the  plaintiff 
against  Thomas  F.  Smith,  as  a  non-resident  of  this  state,  in 
which  the  defendant,  Garesche  was  summoned  as  garnishee. 
No  other  property  or  effects  of  the  defendant.  Smith,  were  at- 
tached, except  such  as  were  alleged  to  be  held  by  the  garnishee, 
Garesche,  as  trustee  for  the  use  of  Smith.  The  property  held  in 
trust  by  Garesche  consisted  of  several  houses  and  lots  in  the  city 
of  St.  Louis.  The  only  interests  to  which  Smith  was  entitled 
was  the  right,  under  certain  terms  and  conditions,  to  receive  the 
net  income,  during  his  life,  arising  from  the  rents  and  profits 
after  the  payment  of  all  expenses,  such  as  taxes,  insurance,  re- 
pairs, etc.  The  nature  and  terms  of  the  trust  are  manifested  by 
a  deed  of  conveyance,  under  which  Garesche  holds  the  title. 
According  to  a  power  in  the  original  conveyance,  Garesche  had 
been  substituted  as  the  trustee  in  place  of  a  prior  trustee.  For 
a  full  statement  of  the  trusts  of  this  conveyance,  reference  is 
made  to  the  case  of  Mcllvaine  v.  Smith  et  al.  (42  Mo.,  45)  ; 
where  it  was  held  by  this  court,  that  Smith  had  no  interest  in 
the  realty,  subject  to  sale  under  execution. 

One  of  the  issues  raised  by  the  pleadings  was  that  the  con- 
veyance under  which  Garesche  held  the  trust  property,  was 
fraudulent  and  void  as  to  the  creditors  of  Smith;  but  this  issue 
was  entirely  ignored  at  the  trial.  It  was  not  referred  to,  nor 
was  any  attempt  made  at  all,  to  attack  the  deed  as  being  fraudu- 
lent as  to  creditors,  and,  therefore,  we  shall  treat  this  case 
as  though  no  such  issue  was  in  it.  Under  this  view,  it  was 
simply  an  attempt  to  draw_an  exclusive  equity  jurisdiction  into. 
a  court  of  law,  by  means  of  the  statutory  process  of  garnish- 
ment in  attachment  suits.  The  court  undertook  to  call  a  trustee 
of  a  pure  express  trust  to  account,  and  to  enforce  the  per- 
formance of  his  duties  as  trustee  in  a  trial  of  an  issue  at  law, 
by  a  jury,  or  by  the  court  sitting  as  a  jury,  and  proceeded  to 
examine  into  the  state  of  his  accounts,  so  far  as  to  ascertain,  as 
the  record  shows,  that  the  trustee  was  accountable  at  least  for  a 
sum  larger  than  the  plaintiff's  demand,  which  had  been  reduced 
to  a  special  judgment,  in  the  attachment  suit,  and  then  ordered 


110  NATURE    AND    FORMS    OF    ACTIONS.  [Cn.VP.    I. 

the  amount  of  that  judgment  to  bo  paid  to  the  plaintiff  by  the 
garnishee.  And  as  the  garnishee  failed  to  comply  with  this 
order,  the  court  declared  him  a  debtor  of  the  plaintiff  and  ren- 
dered a  judgment  against  him,  as  upon  a  legal  indebtedness  due 
from  him  to  defendant,  Smith,  and  without  any  attempt  to  have 
a  full  and  complete  account  taken  and  stated  of  the  trust  mat- 
ters. 

Although  our  code  of  practice  has  abolished  all  distinctions 
in  the  forms  of  actions  for  the  enforcement  or  protection  of 
private  rights,  and  the  redress  or  prevention  of  private  wrongs, 
%A  cv  vjoA>^  the  line  of  demarkation   between   legal  and  equitable  Ccises  is 
^^^^^7        ^>xX^^^^^  preserved  and  fully  maintained  by  the  code!    ThejjTeadings 
.  s.>«v<A  <^      develop  the  nature  of  the  case,  whether  legal  or  equitable,  and 
■*s:.«aA»  o^  -  as  thus  presented,  the  court  proceeds  to  hear  and  determine  it, 
_o  ^  tiv-b  ^"^"^^ either  as  a  court  of  law  or  of  equity,  according  to  the  pleadings. 
j-.^>^\^  —  Tlio  remedy  by  attachinent_  for  the  collection  of  debts  in  this 
"state  js  essentially  legal,  and  not  equitable,  in  its  nature  and 
procedure!     It  is  founded  alone  upon  statutory  law  and,  with 
few  modifications,  has  been  in  existence  as  long  as  the  state 
itself.     It  was  in  full  force  when  the  present  code  of  practice 
was  adopted,  and  it  is  safe  to  say  that  it  has  not  been  changed 
or  essentially  modified  by  that  code.    The  whole  tenor  and  scope 
of  our  attachment  laws,  so  far  as  garnishees  are  concerned,  in- 
dicate that  they  are  intended  to  operate  on  legal  property  rights 
and  effects  of  the  debtor  in  the  hands  of  the  garnishee.     The  I 
service  of  the  garnishment  operates  as  an  attachment  of  such/ 
property  in  his  hands.     (I.  Wagn.  Stat.,  184-5,  §§  18,  19,  23,  and^^ 
664,  §§1,  4,  7,  8.) 

The  issues  on  the  answer  of  the  garnishee  are  to  be  tried  as 
ordinary  issues  between  plaintiff  and  defendant.      (I.   Wagn. 
Stat,  666,  667,  §17.)      If  it  appears  upon  the  trial  that  the; 
garnishee  is  possessed  of  property,  effects  or  money  of  the  de- 
fendant, the  court  or  jury  must  find  what  property,  etc.,  and! 
the  value  thereof,  and  he  may  discharge  himself  by  paying  or 
delivering  over  the  same  to  the  proper  officer  under  the  order/ 
of  the  court,   etc.      (I.   Wagn.   Stat.,   667,   §18.)      These   pro- 
visions demonstrate  that  the  rights,  credits,  and  effects  in  the 
hands  of  the  garnishee,  are  such  as  are  not  encumbered  with 
trusts,  and  such  as  may  be  delivered  over  or  paid  to  the  officer 
under  the  direction  of  the  court,  free  from  the  embarrassment 
of  the  trust.     It  must  be  borne  in  mind  that  this  was  a  con- 


■^ 


Sec.  2.]  lacivLand  v.  garesche.  Ill 

tinuing  express  trust,  to  last  at  least  for  the  lifetime  of  tlie 
beneficiary,  which  has  been  drawn  into  a  court  of  law,  by  way 
of  garnishment,  to  compel  the  trustee  to  execute  the  trust  in 
favor  of  a  creditor  of  the  beneficiary.     In  my  judgment,  it  wasp 
not  contemplated  by  the  legislature  to  authorize  a  court  of  law,| 
in  a  mere  side  issue  growing  out  of  an  attachment  suit,  to  exer- 1 
cise  the  intricate  and  complicated  duties  of  a  chancellor  in  the  | 
enforcement  of  purely  equitable  trusts.     It  is  competent,  under 
our  statutes,  to  summon  a  fradulent  assignee  of  property  and 
effects,  and  compel  him  to  disgorge  in  favor  of  a  creditor.   For 
when  such  issue  is  found  in  favor  of  the  creditor,  no  trust  exists, 
and  the  property  or  effects  can  be  delivered  over  without  any 
trouble,  to  satisfy  the  debt.     So  if  there  has  been  a  settlement  T' 
between  a  trustee  of  an  express  trust  and  his  beneficiary,  and  a  M 
balance  found  to  be  due  upon  such  settlement,  it  becomes  a  debt^ 
at  law,  and  may  be  garnLsheed.     But  nothing  of  this  kind  ap- 
pears in  this  case.    "We  do  not  say  that  the  plaintiff'  is  without 
remedy.     (Pendleton  v.  Perkins,  49  Mo.,  565.)     What  we  decide 
is,  that  if  this  triLst  was  not  fraudulent  as  to  the  creditors  of  ?^^l.«*'>~-  -  J^-»-»^ 
Smith,  the  plaintiff  has  mistaken  his  remedy.  v>xvk->^i 

The  judgment  at  general  term  is  affirmed.     The  other  judges 
concur. 


^   ^\ 


DENNER  V.  C,  M.  &  ST.  P.  R.  R.  CO. 

57  Wis.,  218.    [1883.] 

This  is  an  action  to  perpetually  enjoin  the  defendant  from 
diverting  a  stream  of  water  so  as  to  overflow  lands  in  the  pos- 
session of  the  plaintiff,  and  also  to  compel  the  defendant  to  con- 
struct, at  its  own  expense,  and  forever  maintain  a  suitable  pas- 
sagew-ay  for  the  passage  of  said  stream  in  its  own  natural  chan- 
nel, and  for  damages  and  costs,  and  for  general  relief.  The  de- 
fendant demurred  to  the  complaint  on  the  ground  that  it  ap- 
pears upon  the  face  thereof  that  it  does  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action.  From  the  order  sustain- 
ing that  demurrer  this  appeal  is  brought. 

Cassoday,  J. :  Does  the  complaint  state  facts  sufficient  to 
constitute  a  cause  of  action  within  the  meaning  of  subdivision 
6,  §2469,  Rev.  St.   (subdivision  6,  §5,  c.  125,  Rev.  St.  1858). 


112  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

This  provision  was  taken  from  the  New  York  code,  §  144.  It 
has,  however,  been  construed  by  this  court  as  well  as  the  New 
York  courts.  In  so  far  as  such  constructions  may  differ,  we 
feel  compelled  to  follow  our  own,  especially  where  such  con- 
struction was  first  given  by  this  court. 

The  question  here  presented  was  directly  involved  in  Sup'ors 
of  Kewaunee  County  v.  Decker,  30  Wis.,  624.  In  that  case  it 
was  apparent  from  the  whole  complaint  and  the  relief  de- 
manded that  the  cause  of  action  sought  to  be  stated  was  one  in 
tort  and  not  on  contract,  and  it  was  there  held,  on  demurrer,  in 
effect,  that  the  plaintiff  must  be  confined  to  the  cause  of  action 
thus  sought  to  be  alleged,  notwithstanding  it  was  insufficiently 
stated,  and  that  there  were  other  statements  in  the  complaint 
incidentally  made,  sufficient,  if  talcen  by  themselves,  to  con- 
stitute a  cause  of  action  on  contract.  In  that  case  the  previous 
New  York  authorities  were  reviewed  and  distinguished.  Judge 
Dixon,  giving  the  opinion  of  the  court,  there  said:  ''And  this 
we  take  to  be  the  true  rule,  ^at  the  court  must,  in  the  firstl 
instance,  decide  with  certainty  what  the  specific  caiLse  of  actiom 
counted  and  relied  upon  is,  and,  having  decided  that,  it  must] 
next  determine  whether  the  complaint  contains  a  sufficient  state- 
ment of  such  cause  of  action,  and  if  it  does  not,  the  demurrerj 
must  be  sustaineclp  Applying  that  test  it  was  there  held  that 
the  cause  of  action  there  sought  to  be  stated  was  an  action  of 
trover,  or  one  sounding  in  damages  for  the  tortious  conversion 
of  moneys,  and  not  an  action  on  contract,  and  so  confining  the 
allegations  of  the  complaint  to  such  an  action  it  was  held  to  be 
insufficient.  That  decision  was  placed  upon  the  reasoning  of 
previous  decisions  of  this  court,  and  was  afterwards  sanctioned 
in  Pierce  v.  Carey,  37  Wis.,  234,  and  the  more  recent  case  of 
Gormeley  v.  The  Gymnastic,  55  Wis.,  252;  (s.  c.  13  N.  W.,  242). 
We  have  nothing  to  add  to  the  reasons  given  in  those  cases. 

We  do  not  regard  these  decisions  in  conflict  with  Tewksbury 
V.  Schulenberg,  41  Wis.,  584,  cited  by  the  learned  counsel  for 
the  plaintiff.  That  was  an  action  to  recover  tolls  for  aiding  in 
driving  logs  and  passing  them  over  the  plaintiff's  dams,  and 
the  complaint  asked  to  have  the  same  adjudged  a  lien  upon 
the  logs.  That  was  an  action  before  the  revised  statutes,  and 
hence  was  at  law  and  not  in  equity.  The  court  merely  held 
that  the  demurrer  would  not  be  sustained,  even  though  the 
facts  stated  did  not  entitle  the  plaintiff  to  such  lien.    The  case, 


Sec.  2.]  denner  v.  c,  m.  &  st,  p.  r.  r.  co.  113 

therefore,  is  clearly  distinguishable.    Applying  to  this  case,  the 
test  thus  adopted,  and  it  is  very  evident  that  the  cause  of  action 


here  sought  to  be  alleged  is  one  in  equity  and  not  at  law,  not- 
withstanding the   complaint  may  contain  allegations  whicli   if 
eliminated  and  standing  by  themselves  might  be  sufficient  to 
constitute  a  cause  of  action  at  law?     I'lie  question  really  pre-  (  GLk>*-=S.-«^;  Po' 
sented  is,  therefore,  whether  the  complaint  states  facts  sufficient  I '^-'^^'^''^*^^'''*^''''"*^*^ 
to  constitute  the  cause  of  action  in  equity  sought  to  be  alleged?      "^^^^^^^vr.-^ 

In  Remington  v.  Foster,  42  Wis.,  608,  this  court  held  that  the  *"°*0'-'"~^ 
statute  which  authorized  judgment  of  abatement  in  actions  at 
law  for  damages  by  private  nuisance,  had  the  effect  to  abrogate 
the  remedy  in  equity  to  abate  private  nuisances.  To  the  same 
effect  are  Colin  v.  Wausau  Boom  Co.,  47  Wis.,  314  (s.  c.  2  N.  W. 
546) ;  Pennoyer  v.  Allen,  51  Wis.,  360  (s.  c.  8  N.  W.  268)  ; 
Lohmiller  v.  Indian  Ford  W.  P.  Co.,  id.  688  (s.  c.  8  N.  W.  601). 

The  statute  referred  to  is  chapter  137,  Rev.  St.  (ch.  144,  Rev. 
St.,  1858).    Evidently,  to  obviate  that  difficulty,  the  statute  was 
amended  by  chapter  190,  Laws  1882.     That  amendment  restores 
equitable  jurisdiction  in  the  particular  cases  therein  named.     To 
bring  the  case  within  such  jurisdiction  the  essential  facts  should 
be  affirmatively  alleged  in  the  complaint.     Here  it  is  enough  I 
to  say  that  the  complaint  fails  to  state  facts  sufficient  to  bring] 
the  case  within  any  of  the  provisions  for  equitable  relief  in  that  1 
■  amendment.     In  fact,  it  is  not  so  claimed  by  the  appellant's 
counsel.     Without  going  into  particulars,  it  is  enougiT  to  sayJV 
that  it  does  not  appear  from  the  complaint  that  h6  has  anyl) 
title  or  vested  interest  in  the  land.    It  simply  alleges  possession 
under  a  contract  for  the  sale  thereof  to  the  plaintiff.     It  is  en- 
tirely silent  as  to  the  other  party  to  the  contract,  or  whether 
such  party  ever  had  any  title  to  the  land.    With  such  omissions 
from  the  complaint  we  cannot  presume  that  the  plaintiff  had_ 
either  a  legal  or  equitable  title  to  the  land  from  the  mere  fact 
of  possession.     Without  such  title  we  are  unable  to  perceive 
how  the  nuisance  complained  of  can  work  to  the  plaintiff'  an 
irreparable  injury,  interminable  litigation,  or  a  multiplicity  of 
actions,    or   a   continuous    or   constantly   recurring   injury   to 
the  plaintiff'  within  the  meaning  of  the  amendment.    With  noth- 
ing more  than  a  mere  naked  possession  we  are  unable  to  say 
that  the  plaintiff  has  not  an  adequate  remedy  at  law  for  the 
injur\"  complained  of. 

Such  being  our  views,  the  order  of  the  Circuit  Court  must 
\)e  affirmed. 


114  NATURE    AND    FORMS    OP    ACTIONS.  [ChAP.    I. 

CADDELL  V.  ALLEN. 

99  N.  C,  542.    [188S.] 

The  plaintiff,  Caddell,  brought  an  action  in  ejectment  against 
the  defendant,  Allen.  Judgment  for  plaintiff.  Defendant  ap- 
peals. 

Merrimon,  J. :  In  the  course  of  the  trial  of  this  action,  the 
plaintiff,  the  defendant  objecting,  was  allowed  to  put  in  evi- 
dence a  paper  writing  purporting  to  be  a  power  of  attorney 
from  Stephen  Lacey  and  Thomas  Lacey  to  David  Cuthbertson, 
empowering  the  latter  to  sell  and  convey  the  title  to  the  lands 
therein  mentioned  and  described.  This  paper  writing  concluded 
as  follows:  "In  witness  whereof,  we,  the  said  Stephen  and 
Thomas  Lacey,  have  hereunto  set  our  hands  and  seals,  October 
26th  day,  1816."  (Signed)  Stephen  Lacey,  Thomas  Lacey. 
But  no  seal,  nor  any  mark  or  scroll  purporting  to  be  a  seal,  is 
affixed  to  or  set  opposite  these  signatures,  or  elsewhere  in  the 
writing.  The  plaintiff,  likewise  the  defendant  objecting,  was 
allowed  to  put  in  evidence  a  deed  from  David  Cuthbertson,  at- 
torney, which  purported  to  convey  the  title  to  the  lands  therein 
mentioned  and  described,  of  Stephen  Lacey,  one  of  the  parties 
signing  and  making  the  power  of  attorney,  to  Aaron  Stegall. 
The  following  is  a  copy  of  so  much  of  this  deed  as  need  be  set 
forth  here:  "This  indenture,  made  this  23d  of  Feb.,  1828,  be- 
tween D.  Cuthbertson,  of  the  State  of  North  Carolina,  and 
County  of  Anson,  attorney  for  Stephen  Lacey,  of  the  one  part, 
and  Aaron  Stegall  of  the  state  and  county  aforesaid,  of  the 
other  part,  witnesseth,  that,  for  and  in  consideration  of  one 
hundred  and  fifty  dollars  to  him  in  hand  paid  by  the  said 
Stegall,  the  receipt  whereof  is  hereby  acknowledged,  hath 
granted,  bargained,  and  sold,  four  certain  tracts  of  land  lying, 
etc.  (describing  them),  "and  the  said  D.  Cuthbertson,  in  the 
name  and  by  virtue  of  his  power  of  attorney  from  the  said 
Stephen  Lacey,  warrant  and  forever  defend  the  said  tracts,  con- 
taining six  hundred  acres  of  land,  and  premises,  free  and  clear 
of  all  manner  of  incumbrances,  to  the  said  Stegall,  his  heirs 
and  assigns,  forever,  in  as  full  and  ample  a  manner  as  the 
most  learned  in  the  law  can  devise.  In  witness  whereof,  the  said 
D.  Cuthbertson,  attorney  as  aforesaid,  doth  hereunto  assign 
this  instrument,  and  seal  the  same.     (Signed)  D.  Cuthbertson, 


Sec.  2.]  cvddell  v.  allen.  115 

Attorney  for  Stephen  Lacey.  (Seal.)"  The  defendant,  among 
other  things,  requested  the  court  to  charge  as  follows:  (1) 
"That  the  power  of  attorney  from  Stephen  and  Thomas  Lacey 
to  D.  Cuthbertson  is  void  for  uncertainty  in  the  description  of 
the  land  which  the  said  D.  Cuthbertson  is  authorized  to  sell 
and  convey;  that  the  said  power  does  not  authorize  the  said 
Cuthbertson  to  convey  the  land  said  to  be  embraced  in  the  Lacey 
grant.  (2)  That  the  deed  from  D.  Cuthbertson,  the  alleged 
attorney  and  agent  of  the  said  Stephen  and  Thomas  Lacey, 
passes  no  title  to  the  land  therein  attempted  to  be  conveyed; 
the  conveyance  being  in  the  name  of  Cuthbertson,  and  not  in 
that  of  the  said  Lacey.  (3)  That  if  said  deed  by  Cuthbertson, 
attorney,  passes  any  title  at  all,  at  most  it  is  only  a  life  estate, 
Avhich  has  ceased;  the  said  Cuthbertson,  Stephen  and  Thomas 
Lacey,  and  Stegall  being  all  dead  when  this  suit  was  brought." 
There  was  a  verdict  and  judgment  for  the  plaintiff,  and  the 
defendant  appealed  to  this  court. 

It  is  the  settled  law  of  this  state,  that  an  agent  or  attorney 
in  fact  cannot  execute  a  deed  of  conveyance  of  land,  binding 
upon  his  principal,  unless  he  be  authorized  thereunto  by  a 
power  of  attorney  under  seal.  The  ancient  rule  of  law  in  this 
respect  has  not  been  modified  or  trenched  upon  by  this  court, 
and  we  are  not  at  liberty  or  inclined  to  so  do  now.  If  the  hurry 
and  convenience  of  business  transactions  in  the  present  state  of 
society  require  easier  and  less  solemn  methods  of  conveyance 
of  land  than  formerly,  it  is  the  province  of  the  legislature,  and 
not  that  of  courts,  to  modify  and  change  settled  rules  of  law 
to  that  end.     *     *     * 

But,  if  the  power  of  attorney  were  insufficient,  the  deed  inl 
question  was  not  executed  in  pursuance  and  in  the  proper  exer-\ 
cise  of  the  power.  It  everywhere,  in  the  body  of  it,  purported  > 
in  terms  to  be  that  of  "D.  Cuthbertson,  *  *  *  attorney  of 
Stephen  Lacey,"  etc.  lie,  not  his  principal,  purported  to  con- 
vey title;  and,  as  a  consequence,  no  title  passed,  for  he  had 
none  to  convey.  The  deed  should,  by  its  effective  terms  of  con- 
veyance, be  and  purport  to  be  that  of  principal,  executed  by 
his  attorney,  and  to  convey  the  estate  of  the  principal.  It  is  not 
sufficient  that  the  attorney  intended  to  convey  his  principal's 
estate ;  he  must  have  done  so  by  apt  words,  however  informally 
expressed  to  effectuate  that  purpose.  The  distinct  purpose  of 
the  principal  to  convey,  and  the  necessary  form  and  operative 


116  NATURE    AND    FORMS    OF    ACTIONS.  [CUAP.    I. 

words  to  convey  his  estate,  must  appear  in  the  body  of  the  deed 
in  all  essential  connections.  His  name  should  be  signed,  and 
purport  to  be  signed,  and  his  seal  aflfixed  by  the  attorney;  but 
the  signing  will  be  sufficient,  if  it  be  by  the  attorney  for  the 
principal.  In  Oliver  v.  Dix,  1  Dev.  &  B.  Eq.,  159,  the  deed  in 
question,  very  much  like  the  one  before  us,  ran  throughout  in 
the  name  of  "Thomas  Dix,  attorney  in  fact  for  James  Dix," 
and  was  signed  and  sealed  in  the  same  way.  Chief  Justice 
Ruffin,  delivering  the  opinion  of  the  court,  said:  "It  is  clear 
that  the  deed  offered  to  the  plaintiff  is  altogether  insufficient. 
No  doubt,  the  defendant  intended  to  comply  with  the  contract, 
and  both  he  and  the  plaintiff'  thought  he  was  doing  so.  But  the 
deed  does  not  purport  to  be  the  deed  of  James  Dix,  the  owner, 
but  of  Thomas,  as  the  attorney.  Allusion  is  not  had  to  the 
method  of  signing  only.  It  may  not  be  material  whether  it  be 
signed  J.  D.  by  T.  D.,  or  T.  D.  for  J.  D.  But  the  instrument 
must  profess  in  its  terms  to  be  the  act  of  the  principal."  To 
the  same  effect  are  Scott  v.  McAlpin,  Term  R.  (N.  C),  587 
(155)  ;  Locke  v.  Alexander,  1  Hawks.,  412;  Redmond  v.  Coffin, 
2  Dev.  Eq.,  437 ;  Duvall  v.  Craig,  2  Wheat.,  45,  and  a  note  on 
p.  56;  Appleton  v.  Binks,  5  Ea.st,  148.  So  that  the  power  of 
attorney  and  the  _deed_were  botii  insufficient :  and  the  court 
should  have  rejected  them  when  objected  to  in  the  course  of 
the  trial,  and,  failing  in  this,  it  should  have  given  the  special 
instructions  asked  for  in  such  respect  to  the  jury. 

It  was  suggested  that  the  court  could  see,  upon  the  face  of 
them,  the  purpose  of  the  power  of  attorney  and  the  deed  to 
convey  the  title  to  the  principal,  and  they  should  receive  such 
interpretation  as  will  effectuate  the  purpose.  Courts  will  inter- 
pret pertinent  words  and  phraseology  in  deeds  and  like  instru- 
ments in  such  way  as  to  effectuate  the  intention  of  the  makers 
thereof,  appearing  from  the  whole  instrument,  when  this  can 
reasonably  be  done;  but  there  must  be  proper,  pertinent  and 
necessary  words  and  phraseology  in  them  to  interpret.  The 
court  cannot  supply  and  interpolate  these.  That  would  be  to 
make  them;  and  this  is  not  the  province  of  the  court,  but  only 
that  of  the  parties  to  them.  The  court  can  only  construe  what 
appears,  however  informally.  It  cannot  supply  the  substance, 
or  change  or  modify  that  appearing,  although  it  may  be  satisfied 
that  the  parties  to  the  instrument  failed  to  make  it  what  they 


^^Q   2.1  CADDELh  V.  .VLLEN.  H' 

intended.     They  are  bound  by  what  they  have,  in  effect,  under 
the  rules  of  law,  done,  whatever  may  have  been  the  intention. 

It  was  further  suggested,  inasmuch  as  the_court  can,  m  the 
same_ action, Jry,_and_bear,_^nd__determine   bojh   legal    and. 
Suitable  causes  ofaction_in_appropriate  cases,  it,  seeing  the 
intention  of  the  parties,  ^sjojhp  power  of  attorney  and  the 
d^^Tbef^orTus,  couldand_oughtioj:e£ui^^ 
^d  thejpTdin  mistake  corrected.    It  may  be  that,  in  appropriate 
^ses7this  could  and  ought  t^e  done.    But  here  the  action^ 
fhP  PRiisP  of  action  are  simplx_aiiaw,._No_ecLmtab1e  cnns^-  ot. 
i:^on  is  allecred,  nor  is  such  relieUemanjM-    When  equitable 
Ti^s  are  to  be  litigated  and  relief  sought,  there  must  be  proper 
allegations  and  pleadings  to  such  end,  and  all  parties  to  be  ef- 
fected by   the  relief  demanded  must  be  made  parties  to  the 
action     It  may  be  that  those  interested  adversely  to  the  plain- 
tiff will  not  consent  to  the  making  of  the  desired  correction,  and 
they  are  entitled  to  have  their  day  in  court,  and  to  contest  the 
claim  of  the  plaintiff  in  the  ordinary  course  of  procedure.     It 
is  a  mistaken  notion,  that  to  some  extent  prevails,  that  under 
thT^^^^t  method  of  civil  procedure  thrcourts  can  try,  hear 

;i;^d~d;^to^ii]S7mdriHE^^ 

l^anrway,  however^^um^H^T^t  has  character  and  integrity. 
iThas  purpose:  principlesT^nd  forms,  that  are  necessary  in  the 
safe  and  orderly  administration  of  public  justice,  that  must  be 
observed,  and  the  courts  must  uphold  and  enforce. 

There  is  error.  The  defendants  are  entitled  to  a  new  trial, 
and  we  so  adjudge.  To  that  end,  let  this  opinion  be  certified 
to  the  superior  court.    It  is  so  ordered.*  n^    ^^^Jj^  ^ 


MAGWIRE  V.  TYLER. 
47  Mo.,  115.    [1870.] 

This  is  a  motion  to  affirm  the  judgment  of  the  common  pleas 
rendered  at  the  March  term,  1865.  From  that  judgment  an  ap- 
peal was  taken  to  this  court,  and  at  the  :March  term.  1867  (40 
Mo.,  406),  said  judgment  was  reversed  and  Magwire's  petition 

*  Accord.  Hollister  v.  Bell,  107  Wis.  198;  Hopkins  v.  Washington  Co., 
56  Neb.  596. 


jL     W^;c>  118  NATURE    AND    FORMS    OF    ACTIONS  [ClIAP.    I. 

K.*^,  ,FAa*A4ju  dismissed.  The  judgment  of  this  court  was  reversed  in  the 
'^'^"-*^  '^*^'  supreme  court  of  the  United  States,  at  the  December  terra,  1868, 
^  r\  ^-►^"^and  was  again  argued  there  on  a  motion  to  reform  the  judg- 
^^"^"^  ment,  December  term,  1869.  The  supreme  court  of  the  United 
\  ^'T'^*^^  States  rendered  two  opinions,  which  will  be  found  in  8  Wall., 

(joU. 
^"^"^    .  For  statements  of  case  see  opinion  of  the  court.     As  to  the 

o^  Y<»>s>'-^  facts  at  large  touching  the  case,  see  40  Mo.,  407. 
^  '       Wagner,  J.,  delivered  the  opinion  of  the  court. 

'V*^^  The  former  judgment  of  this  court  having  been  reversed  in 

^*"^^'      the  supreme  court  of  the  United  States,  the  plaintiff  now  files 
^^^-^^^"^      the  mandate  of  that  court  and  moves  that  the  judgment  of  this 
■^-^^-^ ,  ^^^•'^''^^^court  be  reversed,  and  that  of  the  common  pleas  court  of  St. 
.Aiv  cxrvNtvao-  Louis  county  be  affirmed. 

^'•^^*^^  When  the  case  was  here  before   (40  Mo.,  400)   it  was  deter- 

;-'-^^~*'^-^  mined  that  the  defendants  possessed  the  legal  title  and  had  also 
'-^""'''""^■*^  '^the  equities,  and  accordingly  judgment  was  given  in  their  favor. 
«Y  v^-A^Mjv-^  Qjj  error  to  the  supreme  court  of  the  United  States,  that  court 
^;'-^^  adjudged  that  the  legal  title  to  the  premises  in  dispute  was 

^■<*-'«>~-''*-*  ^  vested  in  the  plaintiff;  that  Brazeau's  confirmation,  under  which 
-x^  ^^o^Caj^  plaintiff'  holds,  was  valid;  and  that  Lebeaume's  confirmation, 
..^ .  Jl>^>«~>*A.whence  the  defendants  claim  to  derive  title,  embraced  no  part 
^Uji>^        of  the  land  in  controversy.     (Magwire  v.  Tyler,  8  Wall.,  650.) 
[^.    t\  1a_n-o     If  the  decision  in  the  supreme  court  of  the  United  States  be 
^  5Lo  ^.>oJ[^^^  correct,  the  case  has  been  tried  throughout  on  a  mistaken  theory. 
^     X^     ^  The  suit  was  instituted  by  a  bill  in  equity,  and  proceeds  upon 
f,     ;,    (.       the  ground  that  the  proper  legal  title  was  in  the  defendants. 
^      The  petition  alleged  that  the  plaintiff  had  the  better  equity, 
'**"^'"^'^**^     and  that  the  land  justly  belonged  to  him;  that  the  defendants, 
^"^■^        and  others,   in  combination   and  confederacy  with  them,   pro- 
«w    ^^  cured  a  patent  to  be  issued  to  them,  and  that  the  survey  and 

o^  -  VX.S-     patent  were  procured  and  issued  by  fraud,  covin,  and  misrep- 
Q_X  cV^^    resentations ;  that  the  defendants,  previous  to  the  acquisition  of 
A/coJr  «Wk-  ^°y  claim  or  interest  in  the  land,  had  notice  of  the  interest  or 
^V-kslCWaJI  claim  of  the  plaintiff;  and  that  the  defendants^  patent  was  a 
^^^    cloud  on  the  plaintiff's  better  title,  ij^e  petition  then  prayed 
that  the  court,  by  its  judgment  and  decree,  would  divest  out 
of  the  defendants  all  the  rights,  title,   and  interest   acquired 
or  claimed  bj''  them  and  each  of  them,  from  Louis  Labeaume  or 
any  one  claiming  under  him,  and  invest  the  same  in  the  plain- 
tiff and  put  him  in  possession  thereof,  and  for  an  account,  etc. 


Sec.  2.]  magwire  v.  tvleb.  119 

The  answer  denied  these  allegations,  and  claimed  that  de- 
fendant had  the  prior  title  and  the  better  equity.  It  also 
pleaded  in  bar  a  final  decree  in  chancery  in  a  former  suit  be- 
tween the  same  parties,  upon  the  same  identical  equities;  al- 
leged that  defendants  were  innocent  purchasers  for  a  valuable 
consideration,  and  insisted  that  plaintiff's  suit  was  barred  by 
the  great  lapse  of  time. 

The  only  question  which  it  was  competent  for  the  supreme 
court  of  the  United  States  to  notice  when  the  cause  was  re- 
moved there  was  the  question  of  title  arising  out  of  the  re- 
spective confirmations  under  which  the  parties  claimed. 

Everything  else  set  up  in  the  bill  and  answer  was  peculiarly 
and  exclusively  of  local  state  jurisdiction,  over  which  the  na- 
tional tribunal  had  no  control,  and  concerning  which  an  ad- 
judication here  is  final.    *    *    * 

Under  this  statute  (Twenty-fifth  section  of  the  Judiciary  Act) 
the  express  ruling  is  that  the  court  is  confined  to  an  examina- 
tion of  the  questions  arising  under  the  laws  of  the  United  States, 
and  cannot  consider  any  distinct  equity  arising  out  of  contracts 
or  transactions  between  tlie  parties.  (Matthews  v.  Zane,  7 
Wheat.,  164.)  It  follows,  therefore,  that  the  only  thing  which  ^ 
the  national  court  did  or  could  decide  was  the  validity  of  the 
respective  confirmations  of  Brazeau  and  Lebeaume,  under  which 
the  parties  herein  claim;  and  it  was  decided  most  conclusively 
and  unequivocally  that  the  Brazeau  confirmation,  under  which 
the  plaintiff's  title  accrued,  was  valid,  and  that  the  Lebeaume 
confirmation,  by  virtue  of  which  the  defendants  seek  to  derive 
title,  did  not  embrace  the  land  in  dispute  confirmed  to  Brazeau. 
In  conformity  with  that  decision,  the  legal  title  is  vested  in  the! 
plaintiff",  and  his  remedy  is  the  next  question  to  be  considered.! 

That  ejectment  is  the  proper  and  appropriate  remedy,  where  <7^Jaa>>>.  *' 
a  party  has  the  title,  to  recover  posses.sion  of  real  estate,  is  a  ^y^^x.  o^ 
principle  too  well  established  to  require  argument  or  the  cita- 
tion of  authorities.     A  bill  in  equity  is  not  the  proper  remedy  ^^  ^        \^ 
to  recover  the  possession  of  lands;  and  where  there  is  an  ade-.T'T^^ 
quate  and  a  complete  remedy  at  law,  a  court  of  equity  will  not  ^j^j^^  r^^-^y^jz, 
interpose  unless  upon  some  matters  coming  under  some  peculiar  ^yx-^^y-h-^r--'--^ 
head  of  concurrent  equity  jurisdiction.     (Janny  v.  Spedden,  38 
Mo.,  395.) 

In  those  cases  where  it  is  permissible  under  the  code  to  com- 
bine  in  the   same   proceeding  or   petition   legal   and   equitablr 


120  NATURE  AND  FORMS  OF  ACTIONS,  [CliAP.    1. 

claims,  the  matter  in  equity  and  the  action  at  law  must  be 
separately  stated  and  must  necessarily  be  separately  tried.  Each 
count  must  be  tried  by  itself,  accordini,^  to  the  prescribed  mode 
in  such  actions  and  .suits.  In  an  action  at  law  there  is  a  con- 
stitutional right  of  trial  by  a  jury,  which  has  no  existence  in 
equity.  The  courts  in  New  York  have  held  that  an  equitable 
cause  of  action  to  remove — as  a  cloud  upon  the  plaintiiif's  title 
— a  deed  given  by  mistake  by  a  third  party  to  the  defendants, 
under  which,  having  fraudulently  obtained  possession  by  con- 
nivance with  the  plaintiff's  tenant,  he  claims  to  hold  as  owner, 
and  a  claim  to  recover  the  possession  of  the  premises  may  be 
united  in  the  same  action  and  asserted  in  the  sani(^  complaint. 
But  it  is  also  clearly  held  that  where  legal  and  equitable  causes 
of  action  are  united  under  the  code,  as  to  the  former,  on  the 
trial  of  the  causes,  the  issues  must  be  submitted  t;i  a  jury. 
(Bradley  v.  Aldrich,  40  N.  Y.,  510;  Lattice  v.  McCartv,  41 
N.  Y.,  107.) 

It  has  often  been  held  in  this  court  that  in  a  bill  to  set  aside 
a  deed  as  fraudulent,  the  plaintiff  cannot  sue  for  the  recovery 
of  the  possession  of  the  land,  and  that  proceedings  instituted  for 
the  purpose  of  vacating  title,  vesting  it  in  the  plaintiff,  and  to 
eject  defendant  and  obtain  possession,  are  fatally  erroneous  on 
writ  of  error  or  an  appeal,  and  cannot  be  sustained.  When  the 
decree  is  entered  establishing  the  plaintift"s  title,  he  must  then 
pursue  his  remedy  in  ejectment  for  the  possession.  The  defend- 
ant has  a  right  to  demand  this.  He  has  a  right  to  have  a  jury 
pass  upon  the  question  of  rents  and  profits,  and  upon  other 
questions  which  may  arise  in  that  f  jrm  of  action. 

In  like  manner  it  has  been  held  that  a  cause  of  action  in  eject- 
ment cannot  be  united  with  a  cause  of  action  for  partition  of 
the  premises  sued  for.  (See  Peji;on  v.  Rose,  41  Mo.,  257;  Curd 
V.  Lackland,  43  Mo.,  139 ;  Young  v.  Coleman,  id.  179 ;  Gray  v. 
Payne,  id.  203;  Wynn  v.  Cory,  id.  301;  Jones  v.  Moore,  42  Mo., 
413;  Lambert  v.  Blumenthal,  26  Mo.,  471;  Gott  v.  Powell,  41 
Mo.,  416.) 

It  is  a  grave  error — an  entirely  mistaken  notioni — to  suppose 
that  all  distinction  between  law  and  equity  is  abolished  by  our 
code  of  procedure.  The  line  of  demarkation — the  great  essen- 
tial principles  which  underlie  the  respective  systems — is  inher- 
ent and  exists  in  the  very  nature  of  things.  Although  legal  and 
equitable  cases  are  to  a  certain  degree  blended  as  to  form,  the 


gjjC.    2.]  ilAGWIRE   V.    TYLER.  121 

principles  remain  the  same,  and  the  court  will  not  interfere  and 
exert  its  equity  powers  in  a  strictly  legal  action. 

This  principle  is  almost  daily  acted  upon  in  our  courts,  and 
has  been  the  uniform  course  of  practice  ever  since  the  adoption 
of  our  new  system.  In  all  the  states  where  the  code  has  been 
instituted,  the  ruling  has  been  harmonious  in  the  same  way. 
The  statute  enacts  that  "there  shall  be  in  this  state  but  one 
form  of  action  for  the  enforcement  or  protection  of  private 
rights,  and  the  redress  or  the  prevention  of  private  wrongs, 
which  shall  be  denominated  a  'civil  action.'  "  (Wagn.  Stat. 
§999,  §1;  R.  C.  1855,  p.  1216,  §1.) 

In  providing  that  there  shall  be  but  one  form  of  civil  action, 
the  legislature  cannot  be  supposed  to  have  intended  at  one  stroke 
or  sweeping  enactment  to  abolish  the  well-recognized  and  long- 
established  distinction  between   law  and  equity.     Such  a  con- 
struction would  lead  to  perplexities  and  difficulties,  infinite  and 
endless  in  their  character.     The  innovation  extends  only  to  the 
form  of  action  in  the  pleadings.     While  the  difference  in  form 
and  the  technicalities  in  pleadings  have  been  dispensed  with  and 
the  party  need  only  state  his  cause  of  action  in  ordinary  and 
concise  language,  whether  it  be  under  assumpsit,  trover,  tres- 
pass, or  ejectment,  without  regard  to  the  ancient  forms ;  still  the 
distinction  between  these  actions  has  not  been  destroyed,  but  re- 
mains the  same.   So  cases  legal  and  equitable  have  not  been  con- 
solidated, although  there  is  no  difference  between  the  form  of    • 
the  bill  in  chancery  and  the  common  law  declaration  under  our 
system,  where  all  relief  is  sought  in  the  same  way  from  the  same  Ou^^  ^  -^ 
tribunal.     The  di.stinction  between  law  and  equity  is  as  naked  -,_  ^  jLia. 
and  as  broad  as  ever.     To  entitle  the  plaintiff  to  an  equitable  ^^  ,j^^^    ^ 
3terposition  of  the  court,  he  must  show  a  proper  case  for  the^^^»    j^  ^ 
interference^  of  a  court  of  chancery,  and  one  in_which  he  has  no  ,j^sW  ^^y^  (^ 
"adequate  or  complete  relief  at  law.     The  judgment  vesting  him_  .^,^^^  ^3^^ 
"with  the  legal  title  shows  that  he  has  a  complete,  appropriate,  ,^.,-^^xJla 
and  ample  remedy  at  law  by  ejectment.    These  plain  principles  qJ 
were  entirely  overlooked  at  the  trial  in  the  court  of  the  common  >*^  ^  -«»>^wv 
pleas,  but,  as  before  remarked,  according  to  the  decision  of  the  ^^^   -_jcx 
maioritv  of  the  court,  the  case  was  instituted  and  tried  under 
a  misapprehension.  -0<^.Ji,^»_jR.    rfi 

In  this  view  of  the  subject,  we  consider  it  unnecessary  and  in-  l^^_^^^  ^ 
appropriate  to  discuss  or  render  an  opinion  upon  certain  ques-  ^^X  ' .  ^ 
tions  which  have  been  argued  by  counsel.     When  the  matters  '"*'^^-'->7p^ 


122  NATURE    AND    FORMS    OF    ACTIONS.  [ClIAP.    I. 

insisted  upon  are  properly  before  this  court  they  must  be  re- 
viewed, but  not  till  then.  Wherefore  it  results  that  so  much  of 
the  motion  as  asks  for  an  affirmance  of  the  judgment  of  the 
court  of  common  please,  will  be  overruled,  and,  in  accordance 
with  the  mandate,  the  judgment  of  this  court  will  be  reversed, 
and  the  petition  dismissed.     The  other  judges  concur. 


OsTG*- 


V- 


<^.^^ 


:v 


THE  NEW  YORK  ICE  COMPANY  v.  THE  NORTHWEST- 
ERN INSURANCE  COMPANY. 

23  N.  Y.,  357.    [1861.] 

Appeal  from  the  Supreme  Court.  The  action  was  brought 
on  a  policy  of  insurance  against  loss  by  fire.  The  complaint 
averred  a  claim  on  the  policy  for  the  loss,  and  it  also  averred 
facts  from  which  it  was  claimed  that  an  error  had  occurred  in 
making  out  the  policy.  It  demanded  judgment  for  the  amount 
of  the  loss;  and,  in  case  it  should  be  necessary  to  the  recovery 
that  the  policy  should  be  reformed  and  corrected,  for  a  further 
judgment  as  might  be  necessar>\  The  case  was  brought  to  trial, 
at  special  term,  before  Mr.  Justice  Ingraham  without  jur>%  as 
an  equity  case.  He  was  of  opinion  that  the  mistake,  if  any, 
was  not  in  the  written  instrument,  but  in  a  misunderstanding 
of  the  parties,  by  which  there  was  a  want  of  concurrence  of 
minds  upon  the  conditions  of  the  contract;  and  this  he  held 
did  not  present  a  case  for  relief.  The  plaintiff  then  asked  to 
have  a  further  trial  as  to  their  right  to  recover  upon  the  policy 
of  insurance,  as  it  actually  stood  without  reformation.  The 
judge  held  this  inadmissible,  on  the  ground  that  he  had  no  au- 
thority to  try  the  right  of  the  plaintiff  under  the  policy,  with- 
out a  jury,  nor  to  send  the  case  to  a  jury  for  a  second  trial.  He 
conceded  that  had  the  right  to  equitable  relief  been  established, 
it  would  have  been  his  duty  to  have  proceeded  and  done  com- 
plete justice;  but  regarding  the  action  as  purely  an  equitable 
one,  held  that  a  claim  for  mere  legal  relief  could  not  be  united. 
He  therefore  dismissed  the  complaint  without  prejudice  to  the 
right  of  the  plaintiff  to  bring  a  new  action  upon  the  policy.  The 
plaintiff  having  discovered  that  the  time  for  bringing  an  action 
was  limited  by  the  terms  of  the  policy  and  had  expired,  made  an 
application  at  special  term,  and  the  judgment  was  so  amended 


Sec.  2. J  n.  y.  ice  co.  v.  northwestern  ins.  co.  123 

as  to  permit  him  to  "serve  a  new  complaint  at  law."  On  appeal, 
the  order  allowing  this  amendment  was  reversed,  at  general 
term  in  the  first  district,  on  the  ground  that  the  authority  of 
the  court  to  amend  a  judgment  (without  a  rehearing  of  the 
case)  extended  only  to  mistakes  or  omissions,  and  did  not  reach 
a  case  where  the  judgment  was  precisely  what  it  was  intended  to 
be,  and  disposed  of  the  whole  case.  The  plaintiff  appealed  to 
this  court,  and  the  defendant  moved  to  dismiss  the  appeal. 

CoMSTOCK,  Ch.  J. :  The  object  of  the  suit  was  to  recover  the 
sum  of  $4,000,  in  which  the  defendant,  by  a  fire  policy,  insured 
the  plaintiffs.  In  the  complaint  it  was  stated  that  a  certain 
clause  in  the  policy  descriptive  of  the  subject  of  insurance  was 
inserted  by  mistake,  and  that  the  defendants,  taking  advantage 
of  that  clause,  had  refused  to  pay  the  loss.  The  prayer  of  the 
complaint  was  for  the  recovery  of  the  $4,000;  and,  if  neces- 
sary, that  the  contract  be  reformed  by  striking  out  the  clause 
in  question.  The  case  was  tried  before  Mr.  Justice  Ingraham, 
who  dismissed  the  complaint.  The  decision  proceeded  solely  on 
the  ground  that  the  plaintiffs  had  not  made  out  a  right  to  have 
the  contract  reformed;  but  no  determination  was  made  that  the 
plaintiffs  were  not  entitled  to  recover  on  the  policy  as  it  actually 
was.  The  learned  Justice  was  of  the  opinion  that  such  a  re- 
covery could  not  be  had  without  instituting  a  new  suit,  and  the 
judgment  was  accordingly  without  prejudice  to  the  right  of 
bringing  another  action.  But  the  plaintiffs  afterwards  ascertained 
that,  by  a  provLsion  in  the  policy,  actions  must  be  brought  within 
twelve  months  after  a  loss,  and  that  it  was  too  late  to  begin  dc 
novo.  They  then  moved  the  special  term  to  amend  the  order  of 
dismissal,  by  inserting  leave  to  file  a  complaint  "at  law"  in  the 
same  action,  and  an  order  granting  such  leave  was  made.  From 
this  order  the  defendants  appealed  to  the  general  term,  where 
the  same  was  reversed,  and  from  the  order  of  reversal  the  plain- 
tiff's appealed  to  this  court.  The  defendants  move  to  dismiss 
this  appeal. 

I  confess  myself  unable  to  see  why  the  plaintiffs  were  not 
entitled  to  a  reformation  of  the  contract.  The  learned  justice 
who  tried  the  case,  in  the  opinion  given  by  him,  after  referring 
to  the  evidence,  observes:  "The  only  conclusion  I  can  adopt 
on  this  evidence  is  that  there  was  a  mutual  mistake  as  to  the 
description  of  the  premises  arising  from  a  misunderstanding 
of  the  parties  in  the  original  negotiation  of  the  contract,  and 


124  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

that  the  defendants'  agent  in  making  the  policy  made  it  as  he  in- 
tended it  should  be  when  he  agreed  to  insure  the  property.  The 
policy  was  made  according  to  his  description  entered  by  him 
in  the  books  of  the  company,"  etc.  Now,  if  the  misdescription 
of  the  subject  of  insurance  was  material,  and  was  entered  in 
the  books  of  the  company,  and  found  its  way  into  the  policy  in 
consequence  of  a  mutual  mistake  or  misunderstanding  of  the 
parties,  it  seems  to  me  that  a  proper  case  was  made  out  for  a 
reformation  of  the  contract. 

In  the  next  place,  I  am  of  opinion  that  it  was  erroneous  to 
turn  the  plaintiff  out  of  court  on  the  mej;e  ground  tliatjbehad 
not  entitled  himself  to  the  equitable  relief  demanded,  if  there 
was  enough  left  of  his  case  to  entitle  him  to  recover  the  sum  in 


which  he  was  insured.  No  suggestion  was  made  that  the  com- 
plaint did  not  show  a  good  cause  of  action  for  this  money,  even 
after  striking  out  all  the  allegations  and  the  prayer  on  the  sub- 
ject of  equitable  relief.  But  because  it  contained  those  allega- 
tions, and  because  those  were  tried  without  a  jury  and  tried 
unsuccessfully,  the  court  refused  to  entertain  the  case  for  the 
relief  to  which  the  plaintiff  was  in  fact  entitled,  that  is  to  say, 
for  the  recovery  of  the  money  without  reforming  the  contract. 
This  ruling  proceeded  wholly  on  the  authority  of  the  case  of 
Reubens  v.  Joel  in  this  court  (3  Kern.,  488),  which,  it  is  in- 
timated, was  a  departure  from  previous  cases  also  in  this  court. 
But  this  is  a  mistake.  In  that  case  a  debtor  had  made,  as  it  was 
alleged,  a  fraudulent  assignment  of  his  property ;  and  a  creditor, 
by  simple  contract,  commenced  a  suit  against  the  assignor  and 
assignee  praying  a  recovery  of  his  debt,  and  for  an  injunction 
to  restrain  the  alienation  of  the  property  assigned.  The  ques- 
tion in  the  case  arose  on  demurrer,  put  in  by  the  assignee,  and 
the  point  determined  in  this  court  was,  that  such  a  creditor  was 
not  entitled  in  such  a  case  to  equitable  relief  by  injunction. 
We  all  thought  that  the  creditor  had  no  standing  in  court,  legal 
or  equitable,  as  against  the  assignee,  until  after  judgment 
againts  his  debtor,  and  whatever  was  said  beyond  this  is  to  be 
taken  as  individual  opinion  merely.  The  doctrine  of  the 
previous  cases  (2  Kern.,  266;  id.,  336),  favorable  to  uniting  in 
the  same  action  legal  and  equitable  grounds  of  relief,  was  not 
intended  to  be  disturbed ;  and  a  case  in  this  court  of  a  later  date 
has  reaffirmed  that  doctrine  in  the  most  explicit  manner.  (Phil- 
lips V.  Gorham,  17  N.  Y.,  270.)    In  this  case  the  point  was  very 


Sec.  2.]         n.  y.  ice  co.  v.  northwestern  ins.  co.  125 

distinctly  presented,  and  it  was  decided  upon  the  fullest  con- 
sideration. I  think  it  proper  to  mention  that  the  reason  why  I 
expressed  no  opinion  in  the  case  was,  that  I  hesitated  in  regard 
to  the  power  of  the  legislature  under  the  Constitution  to  abro- 
gate all  the  distinctions  between  legal  and  equitable  actions.- 
That  such  was  the  expressed  intention  of  the  legislature  in  the 
Code  of  Procedure,  I  never  had  any  doubt.  Both  of  these  ques- 
tions must  now  be  considered  at  rest. 

And  in  the  next  place,  I  do  not  see  the  grounds  upon  which 
the  court  below,  in  general  term,  reversed  the  order  of  the 
special  term,  giving  to  the  plaintiff  the  right  to  put  in  a  new  or 
amended  complaint  in  the  action.  I  think  the  complaint  was 
perfectly  good,  and  that  no  amendment  or  substitution  was 
nece.ssary.  It  was  much  more  clearly  good  in  the  so-called  legal 
than  in  the  so-called  equitable  aspect  of  the  case.  Nevertheless, 
the  court  corrected  the  judgment  by  adding  the  words,  "or  the 
plaintiff'  may  serve  a  new  complaint  at  law  in  this  action  on 
payment,"  etc.  The  judgment  was  entered  December  23,  1859; 
notice  of  the  motion  for  leave  to  add  this  clause  to  it  was  given 
in  Februar>'  following,  and  the  order  granting  leave  was  made 
in  July  following.  It  is  suggested  in  the  opposing  papers  that 
the  judgment  had  become  perfect  and  final  before  the  motion 
was  made.  I  do  not  see  the  force  of  this  suggestion.  The 
judgment  was  perfect  as  soon  as  pronounced  and  entered.  It 
would  become  final  when  the  time  for  appealing  should  expire, 
but  there  is  no  pretence  that  this  was  ever  limited  by  serving 
on  the  plaintiffs  the  notice  required  for  that  purpose.  (Code, 
§  332.)  I  think  the  power  of  the  court  to  modify  or  amend  the 
judgment  cannot  be  questioned.  Even  if  the  time  for  appealing 
had  expired  I  am  by  no  means  prepared  to  admit  that  this 
power  would  be  lost.  At  all  events,  so  long  as  the  judgment  was 
subject  to  an  appeal,  it  was  subject  to  such  corrections  and 
modifications  as  the  court  which  pronounced  it  might  in  its  dis- 
cretion think  proper  to  make.  The  administration  of  justice 
would  be  extremely  imperfect  if  this  power  did  not  exist.  In 
this  case  the  complaint  had  been  dismissed  at  the  trial,  because 
the  plaintiffs  had  failed  (as  the  court  thought)  to  prove  the 
equitable  ground  of  relief  which  he  had  alleged.  By  the  modi- 
fication afterwards  directed,  leave  was  given  to  file  and  serve 
a  different,  that  is  to  say,  an  amended  complaint.  The  judg- 
ment then  was  no  longer  absolute,  but  it  would  become  so  unless 


120  NATURE    AND    FORMS    OF    ACTIONS.  [ClIAP.    I. 

the  plaintiff,  within  twenty  days,  amended  his  complaint,  and 
paid  the  specified  costs.  If  an  amendment  was  thought  neces- 
sary this  would  have  been  extremely  proper  as  an  original  dis- 
position of  the  case  at  the  trial.  As  the  time  for  bringing  a 
new  suit  had  expired,  justice  plainly  required  that  the  case 
should  be  put  in  this  situation ;  and  as  it  was  not  so  done  at  the 
trial,  it  was  just  that  the  omission  should  be  supplied  after- 
wards. 

In  the  next  place,  I  am  of  opinion  that  the  Supreme  Court 
had  no  right  to  entertain  the  appeal  at  all  from  the  order  of 
the  special  term.  That  order,  in  its  substance  and  nature, 
simply  allowed  a  pleading  to  be  amended  in  furtherance  of  the 
justice  of  the  case.  Such  orders  rest  in  the  discretion  of  the 
court  which  makes  them,  they  involve  no  substantial  right  and 
they  are  not  reviewable  on  appeal.  They  do  not  belong  to 
either  class  of  orders  which,  according  to  the  Code,  may  be  re- 
examined at  the  general  term.  (Code,  §349.)  As  incidental 
to  the  amendment  applied  for  in  this  case,  it  was  necessary  to 
modify  the  judgment  in  its  absolute  character.  But  this  was 
only  a  part  of  the  discretion  to  be  exercised  on  the  application. 
Not  even  in  this  view  was  any  substantial  right  involved,  be- 
cause it  was  merely  a  question  of  practice  whether  the  legal 
merits  of  the  case  should  be  tried  under  an  amendment  of  the 
pleading  or  in  a  new  action.  Leave  to  bring  a  new  action  had 
been  originally  given.  The  amendment  simply  gave  leave,  in 
the  plaintiff's  election,  to  go  on  in  the  same  action  after  reform- 
ing hLs  complaint.  In  all  this  I  see  nothing  but  practice  and 
discretion  which  afforded  no  ground  for  review. 

But  the  inquiry  remains  whether  the  order  of  reversal,  pro- 
nounced at  the  general  term,  can  be  review^ed  in  this  court.  We 
regret  to  find  that  there  is  no  provision  of  law  which  authorizes 
such  an  appeal.  The  order  appealed  from  does  not,  we  think, 
"in  effect  determine  the  action  and  prevent  a  judgment  from 
which  an  appeal  might  be  taken."  (Code,  §11,  sub.  2.)  On  the 
contrary,  it  leaves  in  force  a  judgment  in  the  action  rendered 
upon  the  trial,  from  which  an  appeal  might  be  taken,  and,  so  far 
as  we  know,  may  still  be  taken.  The  ease,  therefore,  does  not 
seem  to  be  embraced  in  any  of  the  subdivisions  of  the  11th  sec- 
tion of  the  Code,  which  is  the  only  authoritj''  for  appeals  to  this 
court.  The  appeal  must,  therefore,  be  dismissed,  but  without 
costs.  Appeal  dismissed. 


^Svvr«>-^ 


Sec.  2.]  ANDERSON   V.    CHILSON.  127 

ANDERSON   v.   CIIILSON.  >W^ 

8  S.  D.,  64.    [1895.]     ^ 

Fuller,  J. :  As  disclosed  by  the  complaint,  the  substantive 
facts  upon  which  plaintiff  prays  for  an  accounting  with  all  the 
defendants,  are  as  follows:  Plaintiff  was  the  administrator  of 
an  estate,  and  defendants  were  sureties  upon  his  bond.  De- 
fendants, being  called  upon  to  make  good  an  apparent  shortage 
of  $1,200,  as  shown  at  that  time  by  plaintiff's  accounts  with 
the  estate,  demanded  and  received  from  said  plaintiff,  to  hold 
only  as  security  for  any  money  which  they  might  be  required 
to  advance  on  account  of  such  deficiency,  a  certain  stock  of 
general  merchandise,  of  the  alleged  value  of  $1,338,  owned  by 
a  co-partnership  of  which  plaintiff  was  a  member,  and  which 
was  turned  over  by  plaintiff  with  the  consent  of  his  co-partner, 
together  with  plaintift"s  undivided  one-half  interest  in  various 
other  items  of  personal  property  described  in  the  complaint,  and 
aggregating  in  value  the  sum  of  $4,000.  That,  upon  the  de- 
livery of  said  property  to  defendants,  nothing  whatever  was 
paid,  and  the  only  purpose  thereof  and  consideration  therefor 
were  to  secure  and  protect  the  defendants  against  liability  upon 
said  bond.  That  plaintiff  was  never  $1,200  short  in  his  accounts 
as  administrator,  and  that  at  a  final  settlement  of  all  matters 
and  proceedings  relating  to  said  estate,  the  probate  court  found 
that  $458.88  was  the  exact  sum  required  to  balance  said  ac- 
counts, and  relieve  plaintiff  and  the  defendants  from  all  fur- 
ther liability  upon  said  administrator's  bond.  That  said  sum 
of  $458.88  was  the  only  amount  ever  paid  by  the  defendants  in 
the  capacity  of  sureties,  or  otherwi.se  in  plaintiff's  behalf;  and 
that  their  liability  upon  said  bond  has  ceased,  and  plaintiff,  as 
administrator,  has  been  discharged.  The  complaint  concludes 
as  follows:  "Plaintiff  further  alleges  that  said  defendants 
have  taken  all  of  the  goods,  wares,  and  merchandise,  book  ac- 
counts, notes,  live  stock,  and  coal,  hereinbefore  named,  into  their 
own  possession,  and  have  sold  and  disposed  of  the  same  for  their 
o\\Ti  use  and  benefit.  Plaintiff  further  alleges  that  the  defend- 
ants have  collected,  as  plaintiff  is  informed  and  believes,  nearly 
the  entire  amount  of  the  book  accounts  and  notes  heretofore 
named.  Wherefore  plaintiff  prays  judgment  that  the  defend- 
ants be  compelled  to  account  with  him  touching  the  premises, 


128  NATURE    AND    FORMS    OF    ACTIONS.  [ChaP.    I. 

and  ordered  to  pay  over  to  plaintiff  any  balance  found  in  their 
hands  coming  to  him,  and  for  such  other  and  further  relief 
as  to  the  court  may  seem  proper,  together  with  costs  and  dis- 
bursements of  this  suit." 

For  a  determination  of  the  issues  of  law  and  fact  pre- 
sented by  the  pleadings,  the  case  was  referred  to  H.  H.  Potter, 
Esq.,  and  the  evidence  offered  and  received  under  the  separate 
answer  of  the  defendant  Chilson  amply  sustains  and  justifies 
the  following  findings  of  fact  and  conclusions  of  law,  upon 
which  was  entered  the  judgment  of  dismissal,  and  for  costs 
against  plaintiff,  and  in  favor  of  defendants,  from  which  plain- 
tiff" appeals.  Findings  of  fact:  (1)  "I  find  that  the  property 
alleged  to  have  been  delivered  by  plaintiff'  to  defendants  was 
not  delivered  as  security,  as  alleged  in  the  complaint,  but  was 
in  fact  sold  to  the  defendant  Chilson.  (2)  I  find  that  such 
sale  was  with  the  knowledge  and  consent  of  Sorum,  plaintiff's 
partner.  (3)  I  find  that  the  agreed  price  for  the  goods  in  ques- 
tion in  said  action  which  were  sold  to  defendant,  Ole  A.  Chil- 
son, was  the  sum  of  nine  hundred  and  seventy-five  dollars.  (4) 
I  find  that  it  was  agreed  to  between  the  plaintiff  and  the  defend- 
ant, 0.  A.  Chilson,  that  the  purchase  money  of  said  goods 
should  be  applied  in  liquidation  of  the  liabilities  of  defendants 
as  sureties  upon  a  certain  undertaking  given  by  them  to  the 
plaintiff  as  administrator  of  the  estate  of  one  Evans,  deceased. 
(5)  That,  of  the  money  agreed  to  be  paid  by  said  Chilson  for 
said  goods,  he  has  paid  in  liquidation  of  plaintiff' 's  liability  on 
his  account  as  administrator,  and  on  defendants'  liability  as 
bondsman  for  said  administrator,  the  sum  of  four  hundred  and 
fifty-eight  and  88/100  dollars,  and  no  more."  Conclusions  of 
Law:  "(1)  That  plaintiff  be  denied  the  relief  demanded  in 
his  complaint,  and  defendants  have  judgment  for  their  costs  in 
this  action." 

That  the  various  and  numerous  items  and  articles  of  personal 
property  belonging  to  appellant,  and  described  in  his  complaint, 
w^ere  pledged  to  respondents,  who  were  co-sureties  upon  his 
bond,  to  secure  and  indemnify  them  against  loss  arising  from 
the  failure  of  appellant  to  fully  account  for  the  estate  of  which 
he  was  administrator,  was  the  theory  upon  which  he  sought  to 
establish  a  fiduciary  relation  between  himself  and  the  several 
respondents,  entitling  him  to  the  equitable  remedy  of  an  ac- 
counting.   Although  none  of  the  material  averments  of  the  com- 


g£C,  2.]  ANDERSON  V.    CHILSON.  1-29 

plaint  were  proved  at  the  trial,  and  the  evidence  established  an 
unconditional  sale  and  delivery  of  the  property  to  Chilson,  in- 
stead of  a  delivery  in  trust  to  Chilson  and  his  co-respondents,  it 
is  urged  by  counsel  that,  upon  the  facts  as  found,  their  client 
was  e'ntitled  to  a  judgment  for  the  difference  between  the  pur- 
chase  price  agreed  upon  and  the  amount  which  has  been  paid 
by  Chilson  to  the  use  and  benefit  of  appellant.  As  a  detemi- 
nation  of  the  point  thus  presented  is  decisive  of  the  appeal, 
other  questions  discussed  in  the  briefs  of  counsel  will  require 
no  attention. 

The  facts  as  found  being  supported  by  the  evidence,  and  en- 
tirely inconsistent  with  the  cause  of  action  stated  in  the  com- 
plaint, appellant  was  not  entitled  to  a  money  judgment  against 
Chilson,  although  the  findings  of  fact  would  support  an  infer- 
ence that  a  portion  of  the  purchase  price  agreed  upon  had  not 
been  paid.  The  issues  tendered  by  the  complaint  being  ad- 
dressed to  the  equity  side  of  the  court,  followed  by  a  prayer  for 
an  accounting  with  the  numerous  persons  named  and  therein 
charged  in  a  fiduciary  capacity,  the  case  was  sent  to  a  referee, 
and  a  trial  thereof  disclosed  a  case  for  a  jury,  and  established  a 
state  of  facts  which,  if  proved  in  an  action  at  law,  would  en- 
title appellant,  a  vendor  of  personal  property,  to  recover  from 
one  of  the  alleged  trustees,  but  in  fact  a  vendee  of  goods,  wares, 
and  merchandise,  the  balance  due    upon    the    purchase    price 

thereof. 

^Yhen  a  complaint  is  framed  for  equitable  relief,  and  it  ap- 
pears upon  the  trial  that  the  pleader  is  not  entitled  thereto,  a 
judgment  at  law  inconsistent  with  the  allegations  of  the  com- 
plaint, for  damages  upon  a  breach  of  contract  to  pay  a  stipu- 
lated amount  of  money,  cannot  be  entered,  and  the  complaint 
must  be  dismissed.    It  was  held  in  Dalton  v.  Vanderveer  (Sup.) 
20  N.  Y.  Supp.  342:     "Where  a  complaint  states  a  cause  of 
action  which  is  within  the  jurisdiction  of  equity,  and  is  not  an 
action  at  law,  and  the  evidence  given  on  the  trial  fails  to  sus- 
tain such  equitable  cause  of  action,  but  shows  a  cause  of  action 
at  law,  the  complaint  will,  nevertheless,  be  dismissed,  as  a  dis- 
tinction between  equitable  and  legal  actions  still  exists,  though 
the  ^^orms  have  been  abolished."     From  the  headnote  in  Par- 
rish  V.  Railroad  Co.  (Fla.)  9  South.  696,  we  quote  the  follow- 
ing:   "There  can  be  no  recovery  upon  a  cause  of  action,  how- 
ever meritorious  it  may  be,  or  however  satisfactory  proved,  that 
9 


130  NATURE    AND    FORMS    OP    ACTIONS.  [CUAP.    I. 

is  in  substance  variant  from  that  which  is  pleaded  by  the  plain- 
tiff." To  the  same  effect,  see  Lewark  v.  Carter  (Ind.  Sup.)  20 
N.  E.  119 ;  Bradley  v.  Aldrich,  40  N.  Y.  504 ;  Homer  v.  Homer, 
107  Mass.  82 ;  Park  v.  Lide,  90  Ala.  246,  7  South.  805 ;  18  Am. 
&  Eng.  Enc.  Law,  p.  515.  The  principle  that  plaintiff  must  re- 
cover, if  at  all,  upon  the  cause  of  action  alleged  in  his  complaint, 
is  elementary.  The  record  discloses  no  error,  and  the  judgment 
appealed  from  is  affirmed. 


BARLOW  V.  SCOTT. 
24  N.  Y.  40.     [1861.] 

Appeal  from  the  Supreme  Court.  The  complaint  set  forth  a 
contract  for  the  conveyance  by  the  defendant  to  the  plaintiff  of 
forty  acres  of  land  by  a  good  warranty  deed.  It  averred  that 
the  defendant  had  tendered  a  deed  which  contained  only  a 
covenant  of  warranty  against  his  own  acts,  which  the  plaintiff 
refused  to  receive ;  that  the  defendant  had  no  title  to  the  land, 
but  that  it  was  in  the  possession  of  a  third  person,  who  held  it 
adversely  under  a  valid  title.  It  prayed  for  a  specific  perform- 
ance of  the  contract,  or  for  damages.  The  defendant  denied  the 
contract  to  convey  with  general  covenant  of  warranty.  The 
trial  was  before  a  judge  without  a  jury.  The  case  did  not  show 
whether  this  w^as  by  consent,  nor  that  any  objection  was  taken 
to  that  mode  of  trial.  The  judge  found  the  facts,  and  the  same 
are  sufficiently  stated  in  the  following  opinion,  and  ordered 
judgment  for  the  plaintiff  for  $500  damages.  The  judgment 
having  been  reversed,  and  a  new  trial  granted  at  general  term 
in  the  sixth  district,  the  plaintiff  appealed  to  this  court. 

LoTT,  J.  (After  reviewing  the  evidence).  These  considera- 
tions lead  us  to  the  conclusion  that  the  defendant  was  bound  to 
grant  and  convey  the  premises  in  question  to  the  plaintiff  in  fee 
by  a  good  warranty  deed. 

This  conclusion  is  in  accordance  with  right  and  justice,  and 
is  sustained  in  principle  by  authority.  (Story  on  Contracts, 
§§  13  and  13a ;  Wiswall  v.  Hall,  3  Paige,  318 ;  De  Peyster  v. 
Hasbrook,  1  Kern.  583,  590;  Alexander  v.  Vane,  1  Mees.  &  Wels. 
511.)  The  defendant  has  failed  and  refused  to  comply  with 
that  obligation.     Not  only  is  the  deed  tendered  insufficient  in 


Sec.  2.]  BARLOW  v.  scott.  131 

form,  but  it  also  is  found  that  at  the  time  it  was  tendered  the 
premises  were  in  the  possession  of  another  party ;  and  that  the 
same  were  then,  and  since  have  been,  held  and  occupied  by  such 
party  under  deed  thereof,  and  claiming  title  thereto  adversely 
to  the  title  of  the  defendant  and  those  under  whom  he  claims. 
His  deed,  therefore,  would  be  void  as  against  the  party  claiming 
adversely,  and  Avould  not  confer  the  right  of  possession  or  any 
title  under  which  possession  could  be  recovered;  and  the  court 
properly  refused  to  give  judgment  directing  a  conveyance. 

It  is,  therefore,  a  case  where  the  plaintiff  is  entitled  to  dam- 
ages for  the  non-performance  of  the  agreement,  and  the  re- 
maining question  to  be  considered  is  whether  they  are  recover- 
able in  this  action.     The  complaint  is  framed  for  the  specific. 
performance  of  the  agreement,  and  in  default  thereof  for  com- 

pensation  in  damages.     It,  after  setting  forth  the  terms  of  the     . 

contract  sought  to  be  enforced  alleges  that  the  plaiatifnias  no  '^^r 

valid  title  or  interest  in  the  land  in  question,  and  that  the  same 
is  in  the  possession  of  another  party,  holding  the  .same  under  a 
good  and  valid  title.  It  was  therefore,  a  case  where  the  facts 
alleged  were  not  sufficient  to  justify  a  decree  for  specific  per- 
formance, and  it  may  be  conceded,  as  stated  in  the  opinion  of 
the  court  below,  to  have  been  a  well  settled  rule  under  our  for- 
mer judicial  system,  that  a  court  of  equity  where  such  relief  only^ 
is  obtainable,  would  not  have  retained  the  suit  for  the  purpose 
of  awarding  a  compensation  in  damages,  for  the  non-perform- 
ance  of  the  contract  to  convey;  for  the  reason  that  actions  for 
damages  only  were  properly  cognizable  in  courts  of  law,  ia 
which  a  perfect  remedy  could  be  had.  Under  our  present  ar- 
rangement the  same  court  has  both  legal  and  equitable  jurisdic- 
tion, and  if  the  facts  stated  by  a  party  in  his  complaint  are  suf- 
ficient to  entitle  him  to  any  of  the  relief  asked,  and  an  answer 
is  put  in  putting  these  facts  in  issue,  it  would  be  erroneous  to 
dismiss  the  complaint  on  the  trial  merely  because  improper  re- 
lief is  primarily  demanded.  It  is  competent  for  the  court., under 
such  circumstances,  to  grant  any  relief  consistent  with  the  case 
made  by  the  complaint  and  embraced  within  the  issue  (section 
275  of  the  code)  and  the  statement  of  the  right  of  the  plaintiff 
and  its  infringement  by  defendant  constitute  such  case  as  stated 
by  Johnson,  J.,  in  ]\Iarquat  v.  Marquat  (2  Kern,  333,  341)  ; 
rhillips  V.  Gorham,  (17  N.  Y.  270) ;  Tniscott  v.  King,  (2  Seld. 
,165)  ;  Wiswall  v.  Hall.  (3  Paige  314)  ;  LeRoy  v.  Piatt  (4  id.  77) ; 


132  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.   I. 

The  New  York  Insurance  Company  v.  North  "Western  Gas  Com- 
pany (21  How,  Pr.  296,  298).  These  are  the  only  questions 
properly  presented  on  the  appeal. 

It  is,  however,  insisted  by  the  defendant,  that  it  was  erroneous 
for  the  court  to  order  judgment  for  the  plaintiff  on  a  trial  of 
an  issue  without  a  jury.  There  is  nothing  in  the  case  to  show 
that  the  action  was  so  tried  against  or  without  the  defendant's 
consent.  The  objection  does  not  appear  to  have  been  made  at 
the  trial,  and  if  it  was,  the  fact  should  have  been  stated  in  the 
case,  and  not  appearing  there  it  cannot  be  urged  in  this  court 
as  a  ground  for  reversing  the  judgment.  (Greason  v.  Kretel- 
tas,  17  N.  Y.  491.) 

The  result  of  these  views  is  that  the  judgment  of  the  general 
term  should  be  reversed  and  that  of  the  special  term  affirmed 
with  costs,  in  the  supreme  court,  but  without  costs  to  either 
party  on  this  appeal. 

Judgment  at  general  term  reversed,  and  that  at  special  term 
affirmed. 

BRADLEY  v.  ALDRICH. 

40  N.  Y.  504.     [1869.] 

Appeal  from  the  judgment  of  the  supreme  court,  at  general 
.-  ^^-^''^^^  term,  in  the  sixth  district,  reversing  a  judgment  for  the  plain- 
tiff at  special  term,   and  dismissing  the  plaintiff's  complaint 
V*^^*^     with  costs,  without  prejudice  to  the  right  of  the  plaintiff  to 

*  '^  bring  an  action  for  damages  for  fraud,  if  he  shall  be  so  advised. 
^  The  complaint  avers  the  making  of  an  agreement  by  the  plain- 
tiff with  the  defendant,  Aldrich,  by  which  the  plaintiff  was  to 
convey  to  the  defendants  (Aldrich  &  Stone)  a  farm  of  seventy- 
five  acres  in  the  town  of  Vestal,  and  to  deliver  to  one  or  both  of 
the  defendants  forty-four  sheep ;  and  was  to  receive  therefor,  as 
payment,  four  village  lots  in  Binghampton,  a  bond  and  a  mort- 

'■'"'"T^^A     gage,  made  by  one  Finch,  for  $300,  and  $175  in  money;  which 

•  K^Sk agreement  was  carried  into  complete  execution. 
^AP-"'^^^^  The  complaint  further  avers  that  the  plaintiff  was  induced  to 

,AyoSi  r«JiA/-xkAMiiiake  this  exchange  of  property,  and  did  make  the  exchange  in 
Z^^X  1/-*  'reliance  upon  various  false  and  fraudulent  representations  and 
-tA^  ««_^  i^^-  concealment  of  the  truth,  he  being  ignorant  cf  the  situation  and 


Sec.  2.]  bradley  v,  aldrich.  133 

value  of  what  was  represented  by  the  defendant  as  four  village 
lots,  viz.:  The  representation  that  the  property  in  Binghamp- 
ton  consisted  of  four  village  lots  when,  in  truth  and  in  fact,  it 
was  one  village  lot  of  ordinary  size  only.  The  representation 
that  the  said  four  village  lots  were  well  situated,  and  three  of 
them  were  each  worth  $300,  and  the  other  was  worth  $400,  and 
was,  at  that  time,  under  contract  for  sale  thereof,  to  a  respon- 
sible purchaser,  at  that  price;  whereas,  the  whole  was 
of  no  greater  value  than  $200,  in  truth;  and  although  the  de- 
fendant Aldrich  had  made  a  contract  for  the  sale  of  one-fourth 
thereof  at  the  price  of  $400,  such  contract  was  made  with  a  col- 
ored person  who  was  poor,  and  without  means  of  payment ;  and 
the  whole  property,  by  reason  of  the  occupation  of  the  one- 
fourth  by  the  said  purchaser,  was  rendered  unsalable  and  near- 
ly valueless.  And  it  is,  therefore,  averred  that  the  said  piece  of 
land  was  wickedly  and  deceitfully  imposed  upon  the  plaintiff, 
in  part  payment  of  his  fai-m,  by  the  fraudulent  misrepresenta- 
tions and  concealments  of  the  defendant,  Aldrich. 

It  is  also  averred  that  the  defendant.  Stone,  was  a  party  to 
the  fraud;  a  participant  in  the  exchange  and  in  the  fraudulent 
concealment  of  the  truth.  That,  upon  discovering  the  facts,  the 
plaintiff  offered  to  re-convey  and  redeliver  all  that  he  had  re- 
ceived, and  demanded  a  reconveyance  to  himself  of  the  farm. 

The  plaintiff,  upon  these  allegations,  demanded  judgment,  de- 
claring the  agreement  for  the  exchange  fraudulent  and  void. 
That  Aldrich  or  Aldrich  &  Stone  be  required  to  accept  a  re- 
conveyance of  the  village  land,  a  reassignment  of  the  Finch  bond 
and  mortgage,  and  $175  in  money,  and  be  required  to  reconvey 
to  the  plaintiff  his  farm;  or  that  the  plaintiff's  deed  thereof 
to  them  be  declared  void  and  be  canceled ;  and  the  plaintiff  be 
awarded  compensation  for  the  rents  and  profits  and  use  and  oc- 
cupation of  the  farm  while  in  the  defendant's  possession,  and 
for  any  waste  committed  thereon ;  and  that  the  defendant  may 
have  such  other  and  further  relief  as  shall  be  found  necessary 
to  work  full  and  complete  justice  and  equity  in  the  premises. 

The  answer  denied,  in  detail,  the  allegations  which  imputed 
any  misrepresentations,  concealment  or  fraud  to  the  defendants, 
and  gave  a  detailed  account  of  the  negotiation,  and  exchange, 
the  location,  condition  and  value  of  the  property,  and  the 
knowledge  of  the  plaintiff  of  all  the  material  facts,  when  the 
exchange  was  made. 


134  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

The  action  was  brought  to  trial  before  the  special  term,  and 
the  evidence  offered  by  the  parties,  respectively,  being  received, 
the  judge  filed  a  decision,  detailing  briefly  the  evidence,  re- 
viewing its  force  and  effect,  declaring  that  the  plaintiff  had 
failed  to  satisfy  him  of  the  fraud  alleged,  with  one  exception, 
viz. : 

He  finds  and  holds  that  "Aldrich  falsely  represented  him" 
(the  purchaser  of  the  one-fourth  of  the  village  land)  "to  be 
good,  and  for  this  he  is  liable,  and  the  plaintiff  is  entitled  to 
damages  for  whatever  he  has  in  that  respect  alone  sustained; 
and  for  the  purpose  of  ascertaining  such  damages,  there  must 
be  a  reference  to  Judge  Griswold  to  take  proofs  and  i-eport." 
To  this,  the  defendant,  Aldrich,  excepted. 

The  actual  value  of  the  said  one-fourth  of  the  village  lot 
having  been  ascertained,  judgment  was  rendered  for  the  plain- 
tiff for  the  difference  between  the  value  and  the  sum  which  was 
payable  by  the  contract  for  the  sale  thereof,  viz. :  $113,  and  the 
costs  of  the  action. 

From  that  judgment  the  defendant  appealed  to  the  general 
term,  and  the  judgment  was  there  reversed  and  the  plaintiffs' 
complaint  dismissed  with  the  costs  to  the  defendant,  but  with- 
out prejudice  to  the  right  of  the  plaintiff  to  bring  an  action  at 
law,  if  so  advised. 

Thereupon  the  plaintiff  appeals  to  this  court. 

Woodruff,  J.     (Part  of  the  opinion  omitted.) 

No  exception  was  taken  by  the  appellant  to  the  ruling  of  the 
court  in  receiving  or  rejecting  testimony.  The  exceptions  taken 
to  the  decisions  of  the  court,  are  mainly  to  the  findings  of  fact. 

But  the  exceptions  may  be  said  to  present  a  question  of  law 
or  perhaps  two  questions  of  law  in  this,  that  the  appellant  be- 
low excepts  to  the  conclusion  that  the  defendant  is  liable,  and 
the  plaintiff  entitled  to  the  judgment  for  damages  sustained  by 
reason  of  the  false  representations  that  Webb,  the  said  pur- 
chaser, was  good,  and  the  award  of  the  reference  to  ascertain 
such  damages.  And  the  ground  stated  in  the  exception  is  that 
such  decision  is  against  law  and  the  uniform  practice  of  courts 
of  equity.  That  the  justice  had  not  jurisdiction  to  order  such 
a  reference;  that  the  court,  after  there  was  an  express  finding 
that  there  was  no  ground  for  equitable  relief,  had  no  right  to 
try  a  simple  question  of  fraud,  and  assess  or  cause  to  be  assessed, 


Sec.  2.]  bradley  v.  aldrich.  135 

the  damages  therefor;  but  that  a  trial  of  such  an  issue  could 
(unless  the  defendant  consented)  only  be  tried  by  a  jury. 

It  is  clear  that  this  action,  begun  and  tried  as  an  action  in 
equity  seeking  upon  various  allegations  equitable  relief,  and 
equitable  relief  only,  viz. :  the  rescission  of  an  agreement  and 
the  restoration  of  the  parties  to  their  former  condition,  has 
ended  as  an  action  on  the  ease  for  deceit,  and  an  award  of  dam- 
ages therefor;  which  is  "an  action  for  the  recovery  of  money 
only."     (Code  §253.) 

It  cannot  be  said  that  the  defendant,  by  going  to  trial  before 
the  court  without  objection,  waived  his  right  to  object  to  the 
trial  of  a  mere  action  to  recover  damages  for  deceit,  without 
a  jury;  for  the  action  was  not  "an  action  for  the  recovery  of 
money  only"  (Code,  253),  but  for  special  equitable  relief,  and 
was  therefore  "triable  by  the  court"  (Code  254).  He  there- 
fore had  no  alternative,  and  had  no  right  to  object  to  the  trial 
of  the  cause  by  the  court. 

Scott  V.  Barlow,  (24  X.  Y.  40),  does  not  conflict  with  this 
view.  There  the  complaint  was  "framed  for  the  specific  per- 
formance of  an  agreement,  and  in  default  thereof,  for  compen- 
sation in  damages."  The  opinion  pronounced  in  that  case,  held 
that  on  the  face  of  the  complaint  there  was  no  ground  for 
specific  performance,  and  the  case  in  truth  therefore  presented 
a  cause  of  action  for  damages,  and  nothing  more.  The  defend- 
ant therefore  went  to  trial,  to  meet  that  precise  claim.  Greason 
v.  Keteltas  (17  N.  Y.  491),  was  like  Scott  v.  Barlow  in  that  re^ 
spect. 

It  does  not  appear  that  the  plaintiff  at  any  time  treated  the 
action  as  brought  to  recover  damages.  No  such  idea  could  be 
suggested  by  the  complaint :  no  such  claim  appears  to  have  been 
made  at  the  trial.  The  plaintiff  does  not,  in  his  complaint,  aver 
that  he  has  sustained  any  damages  from  the  representation,  and 
it  is  quite  obvious  that  he  did  not  prove  or  attempt  to  prove  his 
damages  from  this  cause,  else  a  reference  to  ascertain  whether 
he  had  sustained  any,  and  how  much  damages,  would  not  have 
been  necessary. 

It  is  certain  that  the  former  practice  of  the  court  of  chan- 
cery furnishes  no  warrant  for  such  a  proceeding.  When  all 
ground  for  equitable  interposition  failed,  the  bill  was  dismissed; 
and  if  a  cause  of  action  at  law  appeared  to  arise  out  of  the 
transaction,  which  rested  in  no  equitable,  but  simply  in  legal 


136  NATURE    AKD    FORMS    OF    ACTIONS.  [ChAP.    I. 

jurisdietion,  the  party  was  left  to  pursue  his  remedy  in  the  ap- 
propriate forum. 

The  code,  however,  in  section  275,  provides  that,  "the  relief 
granted  to  a  plaintiff,  if  there  be  no  answer,  cannot  exceed  that 
which  he  shall  have  demanded  in  his  complaint;  but  in  any 
other  case,  the  court  may  grant  him  any  relief  consistent  with 
the  case  made  by  the  complaint,  and  embraced  within  the  issue." 
This  section  relieves  the  plaintiff'  from  any  technical  objection 
that  he  has  not  prayed  for  the  precise  relief  to  which  on  the 
trial  it  may  seem  he  is  entitled,  but  the  relief  to  be  granted  must 
still  be  consistent  with  the  case  made  by  the  complaint. 

And  in  construing  and  applying  this  section,  another,  equal- 
ly peremptory,  must  be  kept  in  view,  which  rests  upon  the  right 
to  trial  by  jury,  secured  to  the  party  by  the  constitution.  By 
section  253,  "An  issue  of  fact,  in  an  action  for  the  recovery  of 
money  only,  must  be  tried  by  a  jury,  unless  a  jury  trial  be 
waived,"  as  provided  in  section  266. 

Now  it  was  not  the  intent  of  section  275  to  violate  this  sec- 
tion, and  enable  a  plaintiff  to  compel  a  trial  by  the  court,  by 
merely  alleging  some  ground  for  equitable  relief,  and,  failing  in 
that,  have  a  trial  of  issues  in  an  action  for  fraud,  and  have  an 
assessment  of  damages  therefor  without  a  jury.  Nor  will  it 
warrant  the  court  in  disappointing  the  expectation  and  claims 
of  both  parties,  trying  the  action  and  deciding  it,  so  far  as  it  is 
equitable  in  its  nature,  by  denying  the  plaintiff's  claim;  and 
then  selecting  of  facts  found  some  which  may  warrant  an  action 
for  damages,  which  the  plaintiff  has  neither  alleged  nor  claimed, 
and  then  order  an  assessment  by  a  referee,  and  judgment  for 
such  damages  as  may  be  ascertained  and  assessed. 

The  defendant  here  had  a  right  to  a  trial  by  a  jury  of  the 
question  which  the  judge,  at  special  term,  gave  judgment  against 
him;  he  had  a  right  to  know,  in  some  stage  of  the  action,  that 
some  claim  for  damages,  on  the  ground  of  fraud,  was  made 
against  him ;  he  was  entitled  to  an  opportunity  to  object  that, 
as  to  such  an  issue,  he  was  entitled  to  a  trial  by  a  juiy,  and  to 
'  demand  such  a  trial. 

According  to  the  record  before  us,  he  was  not  apprised  of  any 
such  claim  until  its  declaration,  and  its  maintainance  appeared 
in  the  decision  of  the  judge;  and  to  that  he  excepted,  which 
alone  he  could  do. 

The  opinion  in  this  court,  in  Mann  v.  Fairchild  (2  Keyes,  111, 


Sec.  2.]  bradley  v.  aldrich.  137 

et  seq.,)  is  that  "if  a  party  brings  an  equitable  action,  even 
now,  when  the  court  administers  both  systems  of  law  and  equity, 
the  party  must  maintain  his  equitable  action  upon  equitable 
grounds  or  fail,  even  though  he  may  prove  a  good  cause  of  ac- 
tion at  law  on  the  trial.  (See,  also,  Hey  wood  v.  Buffalo,  14  N! 
y.  540.) 

If  it  were  material  it  might  be  further  suggested  that  the  de- 
cision of  the  judge  does  not  itself  show  a  cause  of  action  for 
which  the  damages  could  properly  be  awarded.  His  finding  is 
simply  that  "Aldrich  falsely  represented  him"  (Webb,  the  pur- 
chaser of  one  of  the  lots)  to  be  good;  and  for  this  he  is  liable, 
and  plaintiff  is  entitled  to  judgment  for  whatever  damages  he 
has,  in  that  respect,  sustained."  Here  is  no  finding  of  any 
fraud ;  no  finding  that  the  plaintiff'  was  deceived,  nor  of  any  in- 
tent to  deceive,  though  deceit  is  of  the  gist  of  such  an  action, 
and  no  finding  that  the  plaintiff  sustained  any  damages. 

It  may  be  true  that  where  two  causes  of  action,  one  legal  and 
one  equitable  in  their  nature,  are  stated  in  the  same  complaint, 
the  court  may  try  the  cause,  and  if  the  defendant,  having  just 
opportunity,  does  not  demand  a  jury  for  the  trial  of  such  of 
the  issues  as  the  code  and  the  constitution  both  require  to  be 
tried  by  the  jury  he  may  be  held  to  waive  a  trial  by  a  jury.  But 
he  must  have  just  opportunity  before  the  waiver  will  be  im- 
plied, and  it  is  not  to  be  overlooked  that  the  code  itself,  declar- 
ing how  a  jury  trial  may  be  waived,  does  not  make  mere  appear- 
ance such  a  waiver,  but  "Oral  consent  in  open  court,  to  be  en- 
tered in  the  minutes." 

If  it  could  fairly  be  said  that  the  present  complaint  stated 
two  causes  of  action,  of  which  one  was  for  damage  for  deceit, 
it  would  have  been,  probably,  within  the  power  of  the  general 
term  to  reverse  the  judgment,  and  order  the  issues  in  that  re- 
spect, to  be  tried  by  a  jury.  That  may  be  done  where  causes  of 
action,  legal  and  equitable,  are  properly  united  in  the  same  com- 
plaint.* 

But  I  do  not  think  that  this  action  presents  such  a  case,  and 
the  judgment  appealed  from  should,  therefore  be  affirmed  with 
costs. 

Hunt,  Ch.  J.,  Mason,  Jame.s  and  Daniels,  JJ.,  were  for  af- 
firmance on  the  grounds  stated  in  Woodruff's  opinion. 


*  For  cases  dealing  with  the  union  of  legal  and  equitable  clainas,  see 
chapter  III.  sec.  3. 


138  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

Mason,  'J.,  ,aIso  thoiiy:ht  the  case  came  under  section  171  of 
the  code,  and  there  was  a  total  failure  of  proof  under  that  sec- 
tion, 

Urover,  J.,  thought  the  code  authorized  the  uniting  of  legal 
and  equitable  causes  of  action  arising  out  of  the  same  transac- 
tion. In  this  case  the  general  term  should  have  ordered  a 
new  trial.  The  order  should  be  affirmed  as  to  the  revei-sal  of 
the  judgment,  and  reversed  so  far  as  it  ordered  final  judgment 
for  the  defendant. 

The  order  was  affirmed  on  the  ground  that  the  complaint  did 
not  state  any  other  cause  of  action  than  the  equitable  one,  and 
there  was  a  total  failure  of  proof  as  to  that. 

The  court  agreed,  unanimously,  that  causas  of  action,  both  le- 
gal and  equitable,  arising  out  of  the  same  transaction,  may  be 
united  by  proper  allegations  in  the  complaint. 

Order  affirmed,  and  judgment  absolute  for  the  defendant.* 


Section  3.     Special  Proceedings. 

The  word  "action,"  as  used  in  the  New  Revision  of  the 
Statutes,  when  applied  to  judicial  proceedings,  signifies  an  or- 
dinary prosecution,  in  a  court  of  justice,  by  a  party  against  an- 
other, for  the  enforcement  or  protection  of  a  right,  the  redress 
or  prevention  of  a  wrong,  or  the  punishment  of  a  public  of- 
fence.— N.  Y.  Civ.  Proc.  Sec.  3333. 

Every  other  prosecution  by  a  party,  for  either  of  the  pur- 
poses specified  in  the  last  seetion^,  is  a  special  proceeding. — Ihid. 
Sec.  3334.\ 

^BENOIST  V.  MURRIN. 

48  Mo.  48.     [1871.] 

Currier,  Judge,  delivered  the  opinion  of  the  court. 

This  was  a  proceeding  under  the  statute  (2  Wag.  Stats.  1368, 
§29),  to  contest  the  validity  of  a  paper  produced  and  proved 
in  the  St.  Louis  Probate  Court  as  the  last  will  and  testament 

*  See  also  Porter  v.  International  Bridge  Co..  79  N.  Y.  S.  434. 
tThe  Missouri  Code  has  no  corresponding  provisions. 


gEQ     31  BENOIST   V.    MURRIN.  139 

of  the  late  Louis  A.  Benoist.     After  the  case  had  been  pending  <^  ^ 

for  some  time  in  the  St.  Louis  Circuit  Court,  and  subsequently   ^ 

to  the  framing  of  issues,  or  rather  the  issue  of  devisavit  vel  non,^  ^  ..^.^oJ^  .  0»^ 

the  petition  was  dismissed  without  prejudice  to  the  contestants^'    ^^,^a^^^>J=^  ^ 


rights  and  upon  their  motion.  The  contestees  thereupon  moved 
to  set  aside  the  order  of  dismissal,  and  to  reinstate  the  cause  so  ^^^^^^____^ 
that  they  might  proceed  to  make  proof  of  the  will  in  solemn  .^^^..^^.^.^^ijK  \^ 
form  as  it  is  called.  The  motion  was  overruled,  and  the  con-  ^v^  cX><^>' — ^ 
testees  bring  this  case  here  by  appeal.  Whether  the  court  ^f  Ir^^^^^S^- 
warranted  in  dismissing  the  petition  in  the  manner  stated,  is  the  J_^^^^  ^^^^  V^* 
question  presented  by  the  record  for  consideration.  ,^j.:«.v.>.wv^^ 

Tf  this  were  an  ordinary  suit  between  litigating  parties,  over    <j *^^>^'^ 

whidTthTcircuit  court  had  original  .jurisdiction,  there  could  be 
no  do"ubt  of  the  right  of  the  plaintiffs  to  dismiss  or  take  a  non- 
cuit  at  nny  t'^'-  y^'^'^r  fojju^iinal  submi;ision  of  the  cause  to  the 
-^;iH^r^^:~{G^Z^^^:n8Qo,  p.  662,  HT ;  40  Mo.  178 ;  43  Mo. 
321;  Fink  v.  Bruihl,  47  Mo.  173.) 

But  this  is  not  an  ordinary  suit,  nor  hadjhe  circuit  court  y^^,,^  -vVs,.. 
ori'SiraTlurisdicti^n"'^ntr^uBjecijn^  The  original  juris-  .^..^wlr  o. 
diction  was  with  the  Probate  court,  where  the  will  was  original-  ^.^^  cx.^^ 
ly  probated  and  ordered  to  record.  The  proceedings  were  m 
rem,  operating  directly  upon  the  will— the  res;  and  the  transfer 
^flhe  case  to  the  circuit  court  did  not  change  its  character,  or 
the  character  of  its  subject-matter.  The  etl'ect  of  the  contest- 
ants' petition  and  the  proceedings  under  it  was  to  transfer  that 
subject  matter  from  the  Probate  to  the  Circuit  Court  for  ad- 
judication in  the  latter  court.  There  was  no  appeal  in  form, 
but  the  result  of  the  process  was  the  transference  of  the  contest 
from  an  inferior  to  a  superior  court;  and  that  may  be  done 
without  a  formal  appeal,  as  was  decided  by  this  court  in  Dickey 
v.  Malachi,  6  Mo.  182,  and  where  it  was  also  held  that  the  jur- 
isdiction of  the  circuit  court  in  cases  like  the  present  is  not  orig- 
inal. The  jurisdiction  not  being  original,  it  must  be  derivative, 
in  effect  as  upon  an  appeal. 

If  the  statute  had  provided  for  a  transfer  of  this  clas.s  otj 
cases  from  the  inferior  to  the  superior  court  by  appeal,  and  the 
case  had  been  brought  up  in  that  way  instead  of  by  petition,  no 
one  would  claim  that  the  proceedings  could  be  dismissed  at  the 
instance  of  the  contestants  without  prejudice  to  them— that  is, 
without  an  affirmance  of  the  prior  judgment. 

In  St.  John's  Lodge  v.  Callender,  4  Ired.  342,  the  party  pro- 


140  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

posing  to  establish  the  will  moved  for  leave  to  take  a  noa-suit, 
and  the  motion  was  overruled  by  the  trial  court,  and  its  action 
was  sustained  by  the  supreme  court  of  North  Carolina.  In  de- 
livering the  opinion  of  the  court,  Ruffin,  C.  J.,  discusses  the 
subject  as  follows:  "We  are  not  sure  that  we  understand  what 
was  meant  by  the  appellants  asking  leave  to  suffer  a  non-suit  as 
the  term  is  not  appropriate  to  proceedings  in  the  Probate  Court. 
But  from  analogy  to  actions  at  law,  we  suppose  the  object  was 
to  withdraw  from  the  court  before  a  verdict  was  rendered  on 
the  issue  devistavit  vel  non,  so  as  to  prevent  the  delivery  of  a 
verdict,  and  leave  the  party  at  liberty  to  institute  another  pro- 
ceeding of  the  same  kind.  If  so,  we  think  it  inconsistent  with 
the  proceeding  of  this  sort  and  contrary  to  the  nature  of  the 
jurisdiction  of  the  court  of  probate.  The  instrument  pro- 
pounded is  always  brought  into  court  in  the  first  instance,  and 
the  jurisdiction  is  in  rem.  The  inquiry  is  whether  th  party  de- 
ceased  died  testate  or  intestate;  and  if  the  former,  whether  the 
script  propounded  be  his  will  or  a  part  of  it  or  not.  When 
once  regularly  raised,  the  court  must  pronounce  on  these  ques- 
tions without  reference  to  the  presence  of  this  or  that  person^ 
If  a  case  is  about  to  be  heard  or  under  a  hearing  and  a  party 
in  interest  is  not  furnished  with  full  proof  and  has  been  sur- 
prised, his  course  is,  for  cause  shown,  to  get  an, order  for  open- 
ing the  case  to  further  proof  and  deferring  the  pronouncing  of 
sentence.  It  is  analogous  to  the  trial  of  an  issue  out  of  chancery, 
only  one  is  at  the  instance  of  the  chancellor  to  satisfy  his  con- 
science, and  the  other  the  law  compels  the  court  of  probate  to 
make  up  in  every  case  of  a  disputed  will.  From  the  nature 
of  an  issue,  he  who  alleges  the  affirmative  opens  the  case,  and 
for  that  reason  the  party  propounding  the  will  is  commonly 
spoken  of  as  plaintiff.  But  it  is  inaccurate;  for,  properly 
speaking,  there  is  neither  plaintiff  nor  defendant,  but  both  par- 
ties are  equally  actors  in  obedience  to  the  order  directing  the 
issue.  In  neither  case  is  the  party  in  the  affirmative  at  liberty 
to  withdraw  and  defeat  a  trial  more  than  the  party  in  the  nega- 
tive." 

In  North  Carolina  it  seems  that  the  issue  devisavit  vel  non  is 
made  up  in  the  probate  court  and  sent  to  the  superior  court  for 
trial;  while  with  us  the  same  issue  is  framed  upon  the  contest- 
ants' petition.  But  this  can  make  no  difference  with  the  pro- 
ceedings subsequent  to  the  making  up  of  an  issue.     In  either 


Sec.  3.]  benoist  v.  murrin.  141 

case  the  proceedings  is  in  rem,  and  strictly  of  probate  jurisdic- 
tion. 

In  Missouri  and  in  a  number  of  other  states  there  are  two 
modes  of_jToying^,a_aiI]^one  provisional  and  the  other  final. 
The^rstjs  denominated  the  comxaon  form,  the  second  the  sol- 
emn^ form.  _^  will  is  proved  in  the  common  form  when  it  is  pre- 
sented,  proved  and  ordered  to  record,  as  provided  in  the  thir- 
teenth section  of  our  statute  of  wills.  That  is  or  may  be  done  in 
the  absence  of  the  parties  in  interest,  and  without  citing  them 
to  appea^  The  validity  of  the  will  may  nevertheless  Jje  eon- 
ind 


tested,  and  the  proof  of  it  in  solemn  form  required.  'fWhen  a 
will  is  proved  in  sQkgm.  form."  says  Nisbit,  J.,  in  Brown  v.  An- 
derson, 13  Ga.  176,  ' '  it  is  necessary  that  all  parties  interested 
be  cited  to  witness  the  proceedings,  that  the  will  be  produced  in 
open  court,  that  the  witnesses  be  there  examined,  and  that  ^11 
parties  in  interest  have  the  privilege  of  cross  examination^ ' 
and  that,  in  substance,  is  what  is  contemplated  in  the  tweiity- 
ninth  section  of  our  statute  of  wills.  The  proof  in  solemn  form 
in  this  state  is  required  only  when  a  contest  arises,  and  then 
the  case  is  transferred  to  the  circuit  court  in  the  mode  provided 
by  law  (§29)  as  was  done  in  the  case  at  bar.  The  question 
here  is — all  the  requisite  parties  being  before  the  court,  and 
every  preliminary  step  having  been  taken — whether  it  lies  with 
the  contestants  to  defeat  the  whole  proceeding  by  a  voluntary- 
non-suit  or  dismissal. 

In  my  view  every  consideration  of  public  policy  is  against  the 
allowance  of  such  claim.  It  is  opposed  to  the  authorities  and  in 
conflict  with  the  policy  and  nature  of  probate  proceedings  of 
this  character.  It  has  repeatedly  been  held  that  the  propound-\ 
ers  of  a  will — those  in  the  affirmative — cannot  take  a  non-suit,^ 
that  it  is  the  right  of  the  contestants  in  such  cases  to  insist  on  a  ', 
verdict.  (Roberts  v.  Trawk,  13  Ala.  86;  St.  John's  Lodge  v. 
Callender,  supra;  Whitefield  v.  Hurst,  9  Ired.  175;  and  see  Bur- 
rows V.  Ragland,  6  Humph.  484-5 ;  Etheredge  v.  Idley,  1  Bradf . 
95;  2  Redf.  Wills,  28,  §2  and  note.)  If  the  contestants  may 
insist  on  the  proceedings  going  forward  to  verdict,  certainly 
those  on  whom  it  is  the  burden  of  establishing  an  instrument 
assailed  and  drawn  in  question  by  the  action  of  the  contestants, 
^ight  to  have  the  same  privilege. 

I  think  the  circuit  court  should  have  disposed  of  the  case 
upon  its  merits,  and  not  permitted  the  contestants  to  go  out  of 


« 


142  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.    I. 

court  without  prejudice.  It  was  exercising  a  branch  of  probate 
jurisdiction,  and  ought  to  have  proceeded  as  it  would  have  been 
the  duty  of  the  court  of  probate  to  have  done  had  the  statute 
authorized  the  same  proceedings  in  the  latter  court,  and  the 
contest  had  been  there  pending. 

The  judgment  will  be  reversed  and  the  cause  remanded.  The 
defendant's  motion  will  be  sustained  and  the  cause  reinstated 
upon  the  docket  of  the  circuit  court.  The  other  judges  concur 


LUCAS  V.  LUCAS. 
69  Ma^s.  136.     [1854.] 

Shaw,  C.  'J.  At  a  former  term  of  the  court,  the  petitioner 
in  the  present  case  libelled  his  wife  to  obtain  a  divorce  a  vinculo 
for  the  cause  of  adultery,  and  upon  a  trial,  judgment  was  ren- 
dered that  the  libel  be  dismissed.  This,  from  the  nature  of  the 
subject  matter,  must  bo  deemed  a  final  judgment  against  the  li- 
bellant.  Afterwards,  this  petition  for  a  review  was  filed  by  the 
husband  in  order  to  have  a  new  trial.  At  the  hearing  at  nisi 
prius,  the  judge  before  whom  it  was  brought  was  of  opinion 
upon  the  evidence  that  there  was  sufficient  ground  shown  for 
granting  a  review,  if  the  court  had  authority  to  grant  it;  and 
this  is  the  question  reserved. 

It  is  insisted  on  the  part  of  the  petitioner,  that  this  court  has 
;  authority  to  grant  reviews  in  all  civil  actions,  and  that  a  libel 
■  for  a  divorce  a  vinculo  is  a  civil  action,  because  it  is  a  judicial 
i  proceeding,  in  which  one  person  seeks  against  another  the  re- 
\  dress  of  a  private  wrong  or  injury.  The  question  depends  on 
^  Rev.  Stats,  c.  99,  §§  1,  19. 

t  It  would  hardly  be  safe  to  decide  a  question  of  this  magni- 
tude upon  a  mere  brief  definition,  without  regard  to  the  subject 
matter,  the  obvious  objects  and  purposes  of  the  law,  and  the 
antecedent  legislation  on  the  subject.  And  it  would  seem  to  be 
peculiarly  the  duty  of  the  court  to  hesitate  long  before  put- 
ting such  construction  upon  a  statute  which  has  been  long  in 
force,  and  where  there  is  no  precedent  for  applying  the  law  and 
practice  of  reviews  in  the  case  of  divorce.    For,  though  the  re- 

♦Accord:     Re  Joseph's  Estate,  118  Cal.,  6G0. 


Sec.  3.]  lucas  v.  lucas.  143 

vised  statutes  now  in  force  were  passed  comparatively  a  few 
years  since,  they  were  re-enactments  of  laws  which  had  been  in 
force  nearly  half  a  century.    Sts.  1788,  c.  11;  1791,  c.  17. 

It  may  be,  that  the  term  "civil  action"  in  some  respects,  and 
to  some  purposes,  may,  without  violence  to  the  language,  be 
hold  to  include  proceedings  for  divorce;  and  yet  all  laws  re- 
specting civil  actions  may  not  so  apply  as  to  include  these  pro- 
ceedings. This  results  necessarily  from  the  uncertainty  and 
ambiguity  of  language.  The  fact  that  there  has  been  no  prac- 
tice of  allowing  the  review  of  decrees  of  divorce,  and  that  this  is 
a  novel,  if  not  an  unprecedented,  proceeding,  is  strong  evidence 
of  what  the  general  understanding  of  the  law  on  this  subject 
has  been ;  but  thi«,  of  course,  is  not  conclusive. 

It  will  be  recollected  that  at  the  time  of  the  adoption  of  the 
constitution,  and  for  several  years  after,  proceedings  for  divorce 
were  not  within  the  jurisdiction  of  courts  of  law,  but  of  the 
governor  and  council,  who  proceeded  according  to  the  forms  and 
principles  of  ecclesiastical  courts;  and  even  when  this  jurisdic- 
tion was  transferred  by  Stat.  1785,  c.  69,  §7,  it  was  given 
exclusively  to  the  supreme  judicial  court,  acting  as  an  ecclesias- 
tical court,  and  it  was  declared  that  the  decree  of  the  same  court 
should  be  final. 

Mr.  Dane,  who  speaks  of  review  in  civil  actions  as  depending 
on  Massachusetts  statutes,  speaks  of  it  as  limited  to  a  case  where 
there  has  been  a  verdict,  and  to  a  suit  commenced  by  a  writ,  and 
not  by  petititm  or  complaint.  6  Dane  Abr.,  453,  454.  It  was 
held  in  several  early  cases  in  Massachusetts  that,  to  warrant 
granting  a  review,  the  action  must  have  been  commenced  by 
writ,  and  the  judgment  rendered  on  a  verdict.  Borden  v. 
Bowen,  7  Mass.,  93 ;  Stone  v.  Davis,  14  Mass.,  360.  Perhaps  that 
would  now  be  holding  the  matter  rather  too  strictly ;  Sturdivant 
v.  Greeley,  4  Greenl..  538;  but  it  indicates  the  prevailing  con- 
viction among  lawyers  and  judges  in  regard  to  these  laws,  after 
they  had  been  in  operation  many  years.  Looking  then  beyond 
the  mere  philological  sense  of  the  term,  "civil  action,"  as  used 
in  this  clause  of  the  revised  statutes,  we  find  that  a  process  for 
divorce  is  in  a  certain  sense  a  judicial  proceeding;  but  that 
originally  this  jurisdiction  was  not  vested  in  the  courts  of  com- 
mon law;  that  the  trials  and  proceedings  were  not  according 
to  the  course  of  the  common  law ;  that,  though  in  a  certain  sense 
the  object  of  a  libellant  is  to  obtain  redress  for  a  grievance  or 


144  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.   I. 

private  injury,  yet  that  is  not  by  way  of  recovery  of  damages 
or  obtaining  property,  real  or  personal,  but  rather  for  the  pur- 
pose of  ascertaining  and  declaring  authoritatively  the  status 
and  social  conditions  of  a  party,  upon  which  numerous  and 
most  important  social  and  personal  rights  and  duties  are  made 
by  law  dependent.  It  is  of  the  highest  importance,  not  only 
to  the  security  of  parties  but  to  the  peace  of  society,  that  the 
relation  of  every  party,  either  as  married  or  otherwise,  be  at 
all  times  distinctly  understood.  In  ordinary  cases  of  review 
of  civil  actions,  the  object  is  not  merely  to  reverse  or  affirm  a 
former  judgment;  but  the  original  judgment  may  be  altered 
or  modified,  enlarged  or  reduced,  and  the  party  reviewing  may 
have  judgment  to  recover  back  in  whole  or  in  part,  as  the  va- 
rious circumstances  of  different  cases  may  require.  But  if  a 
review  were  to  lie  on  a  final  decree  of  divorce,  it  could  only  be 
to  reverse  or  affirm  the  former  judgment.  The  court,  in  the 
judgment  on  review,  would  in  effect  render  such  judgment  as 
the  court  should  have  rendered  in  the  former  case;  so  that  the 
new  decision  would  in  effect  relate  back  to  the  former,  and  de- 
termine the  relations  and  the  consequent  rights  and  duties  of 
parties,  as  from  that  time. 

The  alarming  and  dangerous  consequences  of  the  reversal  of 
V^^  a  former  decree  may  be  more  striking  in  a  case  where  such  for- 
mer decree  granted  a  divorce,  than  in  one  where  it  denied  such 
"^^"divorce.     After  the  divorce  a  vinculo,  should  the  one  not  the 
^         "^W^'^guilty  party  marry,  it  would  be  lawful  and  innocent.     A  re- 
'^■^'^^''*^*'^^^    versal  of  the  decree  would  show  that  the  first  marriage  was 
'^^'^'  never  dissolved,  and  the  party  marrying  would  be  liable  to  the 

severe  penalty  of  the  law  against  polygamy.  Should  personal 
property  accrue  to  the  wife,  in  the  meantime,  it  might  be  tres- 
pass or  even  larceny  for  the  husband  to  take  possession  of  it; 
and  yet  a  reversal  of  the  decree  of  divorce  would  show  that 
he  had  a  good  title  and  perfect  right  to  take  it.  Not  only  might 
parties  be  exposed  to  punishment  as  for  crimes,  but  the  rights 
of  husband,  of  wife,  of  children,  to  support  and  maintenance, 
and  the  rights  of  third  parties  towards  them,  would  all  be  left 
in  doubt,  and  this  sometimes  for  years,  whilst  the  petition  and 
the  review  are  pending.     See  Greene  v.  Greene,  2  Gray,  363. 

If  such  a  decree  of  reversal  cannot  be  rendered  on  review, 
when  the  decree  sought  to  be  reversed  is  a  decree  granting  a 
divorce,  it  appears  to  us,  though  the  consequences  might  not  be 


Sec,  3.]  lucas  v.  lucas.  145 

so  numerous  and  disastrous,  yet,  upon  principles  of  law  and 
justice,  the  result  must  be  the  same  when  the  review  seeks 
to  reverse  a  judgment  refusing  a  divorce.  Such  a  decree  is  a 
judicial  determination,  as  between  the  parties,  of  the  whole 
matter  of  controversy  contained  in  the  libel,  and  settles  con- 
clusively that  no  divorce  ought  to  be  granted  for  the  causes 
stated,  either  because  not  sufficient  in  law,  or  not  true  in  fact. 
After  such  a  decision  the  parties  are  plainly  bound,  by  every 
legal  and  moral  obligation,  to  unite  together  in  the  perform- 
ance of  their  conjugal  duties  to  each  other,  and  their  parental 
obligations  to  their  children,  if  they  have  any;  all  which  would 
be  impeded  and  delayed,  if  not  ultimately  defeated,  by  the 
pendency  of  a  review. 

For  these  reasons,  or  some  of  them,  we  think  that  it  has  never 
been  adjudged  that  a  writ  of  review  may  be  granted  by  this 
court,  on  a  final  decree  of  the  court,  either  granting  or  refusing 
a  decree  of  divorce;  and  if  the  legislature  had  intended  to  ex- 
tend the  authority  of  the  court  to  such  a  case,  they  would  have 
done  it  by  express  words.  But  the  revised  statutes  did  not  ap- 
parently intend  to  make  any  alteration  of  the  law  in  this  re- 
spect, but  simply  to  reinstate  the  law  as  it  stood  before.     The*  -yy^  ov*,xj_e 

/>/Mii»f   ayo  +Vioyofrtro  r»f  nrkininn   fhnf     t>innor}i    in   snmp  rpsrtppts.   as  >    .  .     >^ 


court  are  therefore  of  opinion  that,  though  in  some  respects,  as 
in  taxation  of  costs  to  a  prevailing  party,  a  prosecutionJfor_a_  J  "^ 
divorce  may  have  been  regai^d'Ss^civTPactionT^^the  pro- 1  *~^ 
vision~~of  the  revised  statutes  relied  upon  does  not  authorize  ' 
this  court  to  granta  review  of  a  decree  dismissing  a  libel  for  at 
divorce. 

Petition  dismissed* 


<iL>^-AJ-T&0. 


CHINN  v.  TRUSTEES. 

32  0.  St.,  236.    [1877.] 

Scott,  J.:  The  plaintiff  in  error  applied  to  the  district 
court  of  Lawrence  County,  for  a  writ^  of  mandamus,  command- 
ing the  defendants  in  error  to  execute  and  deliver  to  him  a 
township  bond  of  said  township  of  Fayette,  for  one  hundred 
dollars,  in  compliance  with  the  requirements  of  Act  of  April  16, 


•See  also  Powell  v.  Powell,  104  Ind.,  18. 
10 


146  NATURE    AND    FORMS    OF    ACTIONS,  [CflAP.    I. 

1867,  "to  authorize  and  require  the  payment  of  bounties  to 
veteran  volunteers,"  and  the  acts  amendatory  thereof. 

The  facts  stated  in  this  relation  were  such  as  to  bring  his  ease, 
prima  facie  at  least,  within  the  purview  of  said  statute,  and  to 
entitle  him  to  such  bond.  He  avers  in  his  relation  that  since 
the  year  1867,  he  has  often  requested  the  trustees  of  said  town- 
ship, and  their  successors  in  office,  including  the  present  board 
of  trustees,  to  draw,  perfect  and  deliver  to  him  such  bond,  which 
they  have  refused  and  still  refuse  to  do. 

His  application  was  made  to  the  district  court  August  9,  1873. 
The  defendants  answered,  and  for  their  first  defense  alleged 
"that  the  cause  of  action  on  which  the  plaintiff's  application 
is  based,  accrued  to  him  against  the  defendants,  more  than  six 
years  prior  to  the  commencement  of  this  suit,  by  the  said  plain- 
tiffs, and  so,  they  say  that  the  said  action  is  barred  by  the  statute 
of  limitations."  To  this  defense  the  relator  demurred.  The 
court  overruled  this  demurrer,  and  dismissed  the  case  at  his 
costs.  For  alleged  error  in  this  action  of  the  court  below,  the 
I>Iaintiff  here  prosecutes  his  petition  in  error. 

The  code  of  civil  procedure  limits  the  time  within  which  an 
action  can  be  brought  '  *  upon  a  liability  created  by  statute,  other 
than  a  forfeiture  or  penalty,"  to  six  years.  (Sec.  14.)  This 
provision  is  found  in  title  2,  of  the  Code,  the  object  of  which  is 
to  define  and  prescribe  "the  time  of  commencing  civil  actions," 
The  civil  action  of  the  code  is  a  substitute  for  all  such  judicial 
proceedings  as,  prior  thereto,  were  known,  either  as  actions  at 
law,  or  suits  in  equity,  (Sec,  3.)  By  section  8,  the  limitations 
of  this  title  are  expressly  confined  to  civil  actions.  But  pro- 
ceedings in  mandamus  were  never  regarded  either  as  an  action 
at  law  or  a  suit  in  equity,  and  are  not  therefore  a  civil  action 


within  the  meaning  of  the  code^   Mandamus  is  an  extraordinary  / 
or  supplementary  remedy,  which  cannot  be  resorted  to  if  the 
^^^    party   has   any   other    adequate,  ^specific    remedy.      The    code 
^tXr-j-s^    X^   provides  for  and  regulates  this  remedy,  but  does  not  recognize 
J^^^ll^'  it  as  a  civil  action.    It  declares  that  the  writ  of  mandamus  may 

not  be  issued  in  any  case  where  there  is  a  plain  and  adequate 
remedy  in  the  ordinary  course  of  law.  (Sec.  570.)  And  in 
section  577  it  provides  that:  "No  other  pleadings  or  written 
allegation  is  allowed  than  the  writ  and  answer. ' ' 

These  are  the  pleadings  in  the  case,  and  have  the  same  effect, 
and  are  to  be  construed  and  may  be  amended  in  the  same  man- 


Sec.  3.]  chinn  v.  trustees. 


147 


ner  as  pleadings  in  a  civil  action;  and  the  issues  thereby  joined 
must  be  tried  and  the  further  proceedings  thereon  had  in  the 
same  manner  as  in  a  civU  action.''  This  language  clearly  im- 
plies that  mandamus  is  not  comprehended^jwithin  the  civil 
action  of  the  code,  to  which  alone  the  limitations  of  title  2  are 
applicable  as  an  absolute  bar. 

In  holding  otherwise,  we  think  the  court  below  error,  and  its 
judgment  must,  therefore,  be  reversed.     *     *     * 

Judgment  accordingly. 

STATE  V.  HOEFFNER. 

124  Mo.,  488.    [1894.] 

.  Burgess,  J.:  On  the  9th  day  of  February,  1893,  there  was 
duly  issued  from  the  office  of  the  clerk  of  the  criminal  court 
for  the  city  of  St.  Louis,  a  scire  facias  against  the  defendant 
which  recited  that  on  the  30th  day  of  April,  1892,  the  defend- 
ant had  signed  a  bond  to  the  state  of  Missouri  in  the  court  of 
criminal  correction  in  said  city  as  the  security  of  one  Lee  Qua 
Lang  (who  then  stood  charged  in  the  court  of  criminal  correc- 
tion with  a  felony)  for  his,  Lang's  appearance  in  the  court 
of  criminal  correction,  on  the  12th  day  of  May,  1892;  that  de- 
fault was  made  in  said  court  on  said  last  named  day  by  said 
Lang,  which  was  certified  to  the  St.  Louis  criminal  court,  and 
judgment  of  forfeiture  rendered  thereon.  The  writ  commanded 
the  defendant  to  appear  on  the  return  day  thereof,  and  show 
cause  why  the  state  of  Missouri  should  not  have  execution.  De^ 
fendant  filed  answer  to  the  scire  facias,  putting  in  issue  all  the 
recitals  and  allegations  therein  contained. 

On  the  2d  day  of  October,  1893,  the  cause  was  called  for  trial 
m  the  criminal  court,  when  defendant  requesled  and  demanded 
a  trial  by  jurj-,  which  was  refused  by  the  court,  and  he  saved 
his  exceptions.  The  court  then  proceeded  to  hear  the  case  and 
made  its  finding  in  favor  of  the  state.  From  the  finding  and 
judgment  the  defendant  appealed.  The  only  point  urged^'upon 
the  attention  of  this  court  is  the  action  of  the  trial  court  in  re- 
fusing the  defendant  a  trial  by  jury. 

Section  2131,  Rev.  St.,  1889,  reads  as  foUows:  "An  issue  of 
fact  in  an  action  for  the  recovery  of  money  only,  or  of  specific 


148  NATURE    AND    FORMS    OF    ACTIONS.  [ChAP.  I. 

real  or  personal  property,  must  be  tried  by  a  jury,  unless  a  jury 
trial  be  waived  or  a  reference  ordered  as  hereinafter  provided." 

Whatever  may  have  been  said  in  other  jurisdictions  with  re- 
spect to  the  nature  of  a  proceeding  by  scire  facias  on  a  forfeited 
recognizance,  whether  civil  or  a  continuation  of  the  originali 
proceeding,  the  holding  in  this  state  has  been,  that  it  is  a  meret 
continuation  of  an  original  proceeding  to  enforce  the  cc>llection , 
gfa  JpJ>^  confessed.  State  v.  Randolph,  22  Mo.,  474;  State  v. 
Heed,  62  Mo.,  559.  See  also  Lawton  v.  State,  5  Tex.,  272;  2 
Bouvier's  Inst.,  section  3721,  chap.  27. 

The  writ  Ls  a  common  law  writ.  It  is  not  the  commence- 
rn^nt^_ol,g_civil  or  new  action  within  the  meaning  of  the  code, 
but  the  writ  recites  the  recognizance  and  judgment  of  forfeiture, 
and  requires  the  parties  against  whom  issued  to  appear  in  court, 
at  the  next  regular  term,  and  show  cause,  if  they  can,  why  final 
judgment  shall  not  be  rendered  against  them  for  the  amount  of 
the  recognizance  so  forfeited,  and  execution  issued  therefor. 
The  practice  has  been  in  this  state,  and  many  others,  to  plead 
the  writ,  although  our  code  is  silent  as  to  the  course  to  be  pur- 
sued with  respect  to  a  scire  facias  issued  upon  a  forfeited  recog- 
nizance.  Every  defense  which  could  be  made  by  way  of  plea 
or  demurrer  to  a  petition  may  also  be  made  to  the  writ,  and 
when  demurred  to  the  demurrer  goes  to  the  entire  record.  The) 
writ  may  be  amended  when  necessary,  as  pleadings  in  civil  cases, 
the  only  difference  being  that  where  a  demurrer  is  filed  to  any 
pleading  in  an  ordinary  civil_action,  it  only  goes  to  the  face  oT 


such  pleading,  while  in  the  case  of  a  demurrer  to  a  scire  facias, 


issued  upon  a  forfeited  recognizance,  it  goes  to  the  whole  record. 


State  V.  Randolph,  State  v.  Reed,  supra. 

This  is  not  a  civil  action  within  the  meaning  of  the  code  for 
the  recovery  of  money.  Instead  of  a  summons  being  issued  re- 
quiring the  defendant  to  appear  and  answer  a  petition,  as  in  a 
civil  action,  a  scire  facias  issued  to  the  defendant  requiring  him 
to  show  cause  why  a  judgment  already  confessed,  interlocutory 
in  its  effect,  should  not  be  made  final,  and  execution  issued 
thereon,  the  causes  generally  shown  being  7iul  tiel  record,  re- 
lease or  accord  and  satisfaction,  no  one  of  which,  nor  all  of 
them,  convert  the  proceedings  into  an  action  which  is  said  to 
be  "a  legal  prosecution  in  an  appropriate  court  by  a  party 
complainant  against  a  party  defendant  to  obtain  the  judgment 
of  that  court  in  relation  to  some  rights  claimed  to  be  secured  or 


Sec.  3.]  state  v.  hoeffner.  149 

some  remedy  claimed  to  be  given  by  law  to  the  party  complain- 
ing." 1  Am.  and  En.  Encyclopedia  of  Law,  178;  1  Wait's 
Actions  and  Defenses,  10.  It  is  only  in  such  cases  that  the 
parties  are  entitled  to  a  trial  by  a  jury  in  civil  actions,  unless 
the  right  is  given  by  statute  as  in  the  case  of  inquiry  of  damages 
upon  the  dissolution  of  an  injunction  bond,  and  cases  of  like 
character.  If  the  proceeding  had  been  by  suit  brought  upon  the 
recognizance  bond,  as  is  the  practice  in  some  of  the  states,  then 
the  rule  would  be  different,  and  the  case  triable  by  jury. 

We  have  not  overlooked  the  case  of  Milsap  v.  Wildman,  5  Mo., 
425,  in  which  it  is  held  that  a  scire  facias  is  an  action,  also  a 
suit;  and  Wolf  v.  Shaefer,  4  Mo.  Ap.,  367,  in  which  the  same 
rule  is  announced,  and  in  which  it  is  further  held  that  such 
cases  are  triable  by  jur>'  unless  the  same  be  waived.  To  the 
same  effect  is  State  v.  Posey,  79  Ala.,  45. 

The  Milsap  case  was  a  proceeding  by  a  scire  facias  to  revive 
a  judgment  in  a  civil  suit,  and  the  Wolf  case  was  a  proceeding 
by  scire  facias  in  the  probate  court  under  the  statute  against 
the  administrator  upon  his  bond,  and  are  not,  therefore,  con- 
trolling authority  in  this  case.  In  a  criminal  case  a  proceeding  )^>u<^t/^.v..Jt^ 
on  a  forfeited  recognizance  by  scire  facias  is,  as  has  been  said, /N^-i^- 
but  the  continuation  of  a  proceeding  already  commenced,  while  V^ 
in  a  civil  case  it  is  more  like  an  original  action.  \r 

In  Humphries  v.  Lundy,  37  Mo.,  320,  which  was  a  proceeding 
to  revive  a  judgment  rendered  by  a  justice  of  the  peace,  Holmes, 
J.,  in  speaking  for  the  court,  says:    "A  clear  distinction  is  made 
in  the  books  between  an  action  and  a  scire  facias,  Mr.  Chitty 
treating  of  debt  on  judgments,  speaks  of  the  "remedy  by  scire 
facias,"  as  also  frequently  adopted,  on  which  damages  are  not 
recoverable  for  detaining  a  debt,  and  therefore  he  considers  itj 
more  judicious  to  proceed  by  action  upon  a  recognizance  of  bail! 
than  by  scire  facias,  which  is  "only  a  continuance  of  a  former! 
suit,  and  not  an  original  proceeding."     1  Chitty  on  Pleading, 
127,  299;  McGiU  v.  Perrigo,  9  Johns.,  259;  Brown  v.  Harley,'2 
Fla.,  159 ;  Ellis  v.  Jones,  51  Mo.,  187.    We  think  the  rule  thus 
announced  in  harmony  with  our  code  and  the  understanding  of 
the  profession  generally. 

From  what  has  been  said,  it  necessarily  follows  that  section  /Ta>«»-^  "U. 
28,  article  2,  state  constitution,  which  provides  that  "the  right  f  "wajla -^^^ 
of  trial  by  jury  as  heretofore  en -ioved_shdl  remajn  inviolate,"   .o^^^^X^^^xy^ 
has_no  application  to  this  case     State  ex  rel  v.  Vail,  53  Mo.,  97.     Uv    eo-3«-  ri 
Thejudgment  is  affirmed.    All  of  this  division  concur.  '  ^..-^oouA^ 


150  NATURE  AND  FORMS  OF  ACTIONS.  [ChAP.  I. 

STATE  EX  REL.  v.  JENNINGS. 

56  Wis.,  120.    [1882.] 

Appeal  for  Circuit  Court,  Waupaca  County. 

This  case  was  commenced  in  1877.  It  was  here  on  a  former 
appeal  from  an  order  overruling  a  demurrer  to  the  relation  and 
a  motion  to  quash  the  alternative  writ  of  mandamus.  48  Wis., 
549.  The  defendants  thereafter  having  made  return  to  the  writ, 
the  relator  moved  to  strike  out  certain  designated  portions  of 
the  same.  The  circuit  court  granted  the  motion  as  to  certain 
portions  of  the  return,  and  denied  it  as  to  certain  other  portions. 
The  defendants  appeal  from  the  portion  of  the  order  striking 
out  certain  portions  of  the  return,  and  the  relator  appeals  from 
that  portion  of  the  order  refusing  to  strike  out  another  certain 
portion  of  the  return,  and  both  appeals  were  argued  together. 

Cassodat,  J. :  Are  the  rules  as  to  practice  and  pleadings  in 
ordinary  actions  applicable  in  cases  of  mandamus?  The  pro- 
visions of  the  present  statute  entitled  "Proceedings  in  Civil 
Actions  in  Courts  of  Record,"  relate  not  only  to  ** actions,"  but 
also  to  "proceedings  in  the  circuit  courts."  Section  2593.  Sec- 
tion 2600,  Rev.  St.,  provides  that  "the  distinctions  between 
actions  at  law  and  suits  in  equity  and  the  forms  of  all  such 
actions  and  suits  have  been  abolished  and  there  is  in  this  state 
but  one  form  of  action  for  the  enforcement  or  protection  of 
private  rights,  and  the  redress  or  prevention  of  private  wrongs, 
which  is  denominated  a  civil  action."  Id.,  section  8,  c.  122,  Rev. 
St.  of  1858.  That  title  also  includes  c.  121,  Rev.  St.,  which  pre- 
scribes "the  forms  of  pleading  in  civil  actions  in  courts  of  rec- 
ord, and  the  rules  by  which  the  sufficiency  of  the  pleadings  are 
determined,"  (section  2644,  Rev.  St.)  and  gives  the  only  requis- 
ites of  the  only  pleadings  provided  for,  to-wit,  a  complaint,  an- 
swer, reply  and  demurrer.  The  statutes  also  provide,  in  effect, 
that  whenever  any  writ  of  mandamus  shall  be  issued,  the  person, 
body,  or  tribunal  to  whom  the  same  shall  be  directed  and  de- 
livered shall  make  return,  and  for  a  neglect  so  to  do  shall  be 
proceeded  against  as  for  a  contempt.  Sec.  3450  Rev.  St.  And 
whenever  a  return  shall  be  made  to  any  such  writ,  the  person 
prosecuting  the  same  may  demur  or  answer  all  or  any  of  the 
material  facts  contained  in  the  same  return;  and  the  like  pro- 
ceedings shall  be  had  thereon,  for  the  determination  thereof,  as 
might  have  been  had  if  the  person  prosecuting  such  writ  had 


Sec.  3.  J  state  ex  rel.  v.  jennings.  151 

brought  his  action  for  a  false  return.  Section  345,  Rev.  St.  But 
notwithstanding  the  provisions  of  the  statute  referred  to,  it 
was  contended  by  the  learned  counsel  for  the  relator  that  pro- 
ceedings by  mandamus  are  not  affected  by  the  Code,  but  are 
regulated  by  the  rules  of  pleading  and  practice  prevailing  at 
common  law,  and  he  cites  in  support  of  his  position,  People  v. 
Ulster  Co.,  32  Barb.,  477. 

In  that  case  the  defendants  demurred  to  the  reply  on  plea  of 
the  relator  to  a  portion  of  the  return,  and  the  court  directed 
judgment  for  the  defendants  on  the  demurrer,  with  leave  of 
the  plaintiff  to  amend  this  plea  on  payment  of  the  costs.  That 
decision  was  reversed,  however,  in  the  court  of  appeals  (34 
N.  Y.,  268)  on  the  ground  that  the  particular  paragraph  of  the 
answer  to  which  the  plea  or  reply  was  made,  was  immaterial, 
impertinent  and  frivolous.     Page  269. 

In  People  v.  Baker,  35  Barb.,  105,  it  was  held  that  "the  return 
must  be  good,  tested  by  the  ordinary  rules  of  pleading,  both  in 
form  and  substance,  and  stands  as  the  second  pleading  in  the 
case."  Some  of  the  New  York  cases  have  regarded  proceedings 
by  mandamus  as  an  action  for  the  purpose  of  taxing  costs. 
People  V.  Colborne,  20  How.  Prac,  378;  People  v.  Lumley,  28 
How.  Prac,  172 ;  S.  C.  id.  470. 

In  the  last  case  cited  it  was  said  at  general  term  by  JMason, 
J.,  giving  the  opinion  of  the  court,  that,  "if  any  question  can  be 
regarded  as  settled  with  us  in  this  district,  it  is  that  a  proceed- 
ing upon  mandamus,  where  there  has  been  a  return,  and  the 
suit  has  gone  to  pleadings,  and  a  trial  thereon  has  been  had, 
is  not  a  special  proceeding  under  the  code,  but  an  action."  28 
How.  Prac,  172.  And  on  appeal  from  the  order  the  court  of  ap- 
peals, per  Davis,  J.,  said:  "It  is  not  an  order  which  in  effect 
determines  the  action  and  prevents  a  judgment  from  which  an 
appeal  might  be  taken  to  this  court.  It  is  not  a  final  order  made 
in  a  special  proceeding,  for  this  is  an  action."  28  How.  Prac, 
471. 

The  other  authorities  from  New  York  cited  by  the  counsel  for 
the  relators  are  to  the  effect  that  immaterial  matter  stated  in  the 
return  may  be  stricken  out  on  motion  or  "rejected  as  surplus- 
age." But  the  New  York  cases  are  not  altogether  applicable,  for 
the  proceedings  there  are  governed  by  the  statutes  and  Code 
of  that  state.  Sec  471  of  their  Code,  among  other  things,  pro- 
vides, in  effect,  that  the  second  part  of  that  act,  being  the  part 


152  NATURE  AND  FuKMS  OF  ACTIONS.  [CUAP.   I. 

entitled  "Of  Civil  Actions,"  "shall  not  affect  proceeding's  upon 
mandamus."  The  Code,  as  orifi:inally  adopted  in  tins,  state, 
provided  that,  "until  the  legislature  shall  otherwise  provide,, 
this  act  shall  not  affect  proceedings  upon  mandamus,"  etc.  Sec. 
365,  c.  120,  Laws  1856.  That  i)rovision  was  excluded  by  the 
revision  of  1858,  which,  among  other  things,  provided  that  ' '  all 
the  forms  of  pleading  heretofore  existing  are  abolished,  and 
hereafter  the  forms  of  pleading  in  civil  actions  in  courts  of  rec- 
ord, and  the  rules  by  which  the  suflSciency  of  the  pleadings  are 
determined,  are  those  prescribed  by  this  chapter"  (section  1,  c. 
125,  Rev.  St.  1858),  which  consisted  of  a  complaint,  answer, 
reply,  and  demurrer,  as  now.  The  legislature  having  thus  ex- 
cluded the  saving  clause  as  to  mandamus,  and  abolished  all  "ex- 
\  isting  forms  of  pleading,"  and  all  "distinctions  between  actions 
at  law  and  suits  in  equity,  and  the  forms  of  all  such  actions  and 
suits,"  can  it  still  be  maintained  that  the  rules  of  pleading  and 
practice  in  mandamus  cases  are  not  to  be  governed  by  the  statute 
ias  to  the  sufficiency  of  the  pleading,  but  by  the  rules  which  ex- 
isted at  common  law.  It  is  true  that  at  common  law  the  word 
"civil  actions"  would  not  include  writs  of  mandamus.  Com. 
V.  Com'rs  of  Lancaster,  6  Bin.,  9.  Mr.  Bouvier  says:  "The  vital 
idea  of  action  is  the  proceeding  on  the  part  of  one  person,  as 
actor,  against  another  for  the  infringement  of  some  right  of  the 
first,  before  a  court  of  justice,  in  the  manner  prescribed  by 
the  court  or  the  law."  On  the  other  hand,  a  mandamus  at  the 
common  law  of  England  was  denominated  a  i)rerogative  writ,  and 
was  originally  issued  out  of  the  court  of  chancery,  but  subse- 
quently out  of  the  court  of  King's  Bench,  because  the  king 
originally  sat  in  these  courts  in  person,  and  aided  in  the  admin- 
istration of  justice.  Hence,  in  theorj'  at  least,  it  was  not  so 
much  the  individual  seeking  redress  as  the  king  who  was  the 
actor. 

In  this  country  it  cannot  be  a  prerogative  writ;  but,  never- 
theless, partakes  of  the  nature  of  such  a  writ,  and  under  the 
constitution  and  laws  is  issued  by  the  courts.  Att'y  Gen.  v. 
R.  R.  Co.  te  seq.,  35  Wis.,  512.  Beyond  question  it  is,  however, 
in  a  proper  case,  in  substance  a  civil  remedy  for  the  citizen  who 
has  been  deprived  of  a  clear  legal  right,  notwithstanding  it  is 
commenced  and  prosecuted  in  the  name  of  the  state.  The  state 
is  only  a  nominal  party.  Bowes  v.  O'Brien,  2  Carter,  431;  State 
V.  Commissioners,  5  0.  St.,  502.     The  word  "suit"  is  irequent- 


Sec.  3.]  state  ex  rel.  v.  jennings.  153 

ly  used  in  practice  as  synonymous  with  the  words  "civil 
action,"  but,  nevertheless,  it  seems  to  be  more  comprehensive 
and  includes  proceedings  in  chancery  as  well  as  law.  Didier  v. 
Davidson,  10  Paige,  516.  The  word  ''suit"  was  held  to  include 
the  write  of  prohibition  in  Weston  v.  City  of  Charleston,  2  Pet., 
449.  Chief  Justice  Marshall,  speaking  for  the  court  there,  said : 
"The  term  is  certainly  a  very  comprehensive  one,  and  is  under- 
stood to  apply  to  any  proceeding  in  a  court  of  justice  by  which 
an  individual  pursues  that  remedy  in  a  court  of  justice  which 
the  law  gives  him."  Page  464.  One  definition  of  the  word 
"suit,"  as  given  by  Bouvier,  is:  "A  petition  to  a  king  or  a 
great  person,  or  a  court."  Other  dictionaries  give  similar  defini- 
tions. In  Vermont  it  has  been  held  to  include  a  petition  by  a 
creditor  of  a  deceased  estate  to  liijuidate  and  recover  his  de- 
mauds.  Colderwood  v.  Colderwood,  38  Vt.,  176.  So  proceedings 
to  condemn  lands  for  a  public  u.se  have  been  held  to  be  a  suit 
within  the  meaning  of  the  judiciary  act.  U.  S.  v.  Block,  121 ;  3 
Biss,  208;  Warren  v.  Wis.  Valley  R.  R.  Co.,  6  Biss.,  425.  In 
Georgia  it  has  been  held  to  include  a  petition  for  a  writ  of  cer- 
tiorari. Kendrix  v.  Kellogg,  82  Ga.,  435.  So  it  has  been  held 
to  include  a  proceeding  by  mandamus.  ^McBane  v.  People,  50 
III.,  506-7;  Felts  v.  Mayor,  2  Head.,  650. 

Our  statute  on  the  subject  of  pleading  speaks  not  only  of  the 
"actions  at  law  and  the  suits  in  equity,"  but  also  "of  the  forms 
of  all  such  actions  and  suits."  Believing  that  our  statute  re- 
specting pleading  and  practice  should  have  a  liberal  con.struc- 
tion,  we  are  constrained  to  hold  that  a  proceedinL^  bv  man-  ~\  ■\M^e^.r.^i^ 
damns  is  essentially  a  suit,  and  that  when  issue  is  joined  by  the  j^ -^Mj^^LiL^*^ 
return  it  becomes,  in  efYect,_a  civil  action  within  the  meaning  of 
the  statute,  and  asto  the  fmro  and  the  sufficiencv  of  the  several 
pleadings,  must  be~governed  by_the  same  rules  which  prevail  in 
other  civlFactlons^  DT  course,  the  relation  is  to  be  regarded  J  ^^^^^ 
the  same  as  a  complaint,  and  the  return  as  the  answer  to  which 
the  demurrer  or  reply  may  be  interposed.  This  is  in  harmony 
with  the  repeated  adjudications  of  the  court.  Applying  the 
ordinary  rules  of  pleading  and  practice  in  the  case  before  us, 
and  we  must  hold  that  th^M^^rtion  of  the  order  refusing  to 
strike  out  a  portion  of  the  return  is  not  appealable,  for  the  rea- 
sons given  in  Kewaunee  v.  Decker,  28  Wis.,  669 ;  Noonan  v.  Or- 
ton,  30  Wis.,  609.     ••     * 

For  the  reasons  given,   the  appeal  taken  by  the  relator  is 


154  NATURE  AND  FORMS  OF  ACTIONS.  [CUAP.  I. 

dismissed  and  those  portions  of  the  order  striking  out  portions 
of  the  return  are  reversed,  and  the  cause  is  remanded  for  the 
further  proceedings  according  to  law. 

Judgment  reversed* 


DEER  LODGE  COUNTY  v.  KOHRS. 

2  Mont.,  66.    [1874.] 

Kohrs  was  the  administrator  of  the  estate  of  Frederickson,  de- 
ceased. The  Board  of  County  Commissioners  of  Deer  Lodge 
County  commenced  this  action  in  behalf  of  the  county,  which 
was  a  creditor  of  the  estate.  The  probate  court  rendered  judg- 
ment in  favor  of  Kohrs,  Jan.  25,  1873.  An  appeal  was  then 
taken  to  the  district  court  and  dismissed  by  the  court,  Knowles, 
J,,  upon  the  motion  of  Kohrs. 

Wade,  C.  J. :  The  only  question  involved  in  this  case  relates 
to  the  jurisdiction  of  the  probate  court.  This  action  was  com- 
menced in  the  probate  court  of  Deer  Lodge  county,  and  from 
thence  appealed  to  the  district  court,  wherein  it  was  decided 
that  the  probate  court  had  no  jurisdiction  of  the  case  and  from 
this  decision  appeal  was  taken  to  this  court. 

The  complaint  charges  that  the  administrator  committed 
waste  in  this,  that  he  converted  to  his  own  use  about  $1,800 
of  the  property  of  the  estate,  and  failed  to  account  for  the  same 
to  the  estate  or  to  the  creditors  thereof,  of  whom  this  plaintiff 
is  one,  and  asks  a  judgment  against  the  administrator  for  double 
the  amount  of  the  property  thus  wasted,  in  pursuance  of  a 
provision  of  the  statute. 

It  is  claimed  that  this  proceeding  is  a  civil  action,  and  that  by 
virtue  of  Section  2  of  the  statute  amendments  to  the  Organic 
Act,  wherein  it  is  provided  that  the  probate  courts,  in  addition 
to  their  probate  jurisdiction,  shall  have  authority  to  hear  and 
determine  civil  causes,  wherein  the  debt  or  the  demand  claimed 
does  not  exceed  $500,  necessarily  excludes  the  probate  court's 
jurisdiction  to  hear  the  matters  herein  involved,  for  the  reason 
that  more  than  $500  is  in  dispute. 

To  decide  this  case  properly  it  will  be  necessary  to  decide 

*In  many   of  the  States  the  Practice  Act  does  not  embrace  the 
extraordinary  writs.    See  State  ex  rel.  v.  Williams,  96  Mo.,  13. 


Sec.  3.]  deer  lodge  county  v.  koiirs.  155 

what  is  meant  by  the  term  "probate  jurisdiction,"  as  used  in 
the  Organic  Act." 

The  Organic  Act  provides  (section  9)  that  the  jurisdiction  of 
the  probate  courts  shall  be  limited  by  law. 

This  section,  therefore,  confers  upon  the  legislature  authority 
to  define  the  probate  jurisdiction  of  this  court,  and,  in  pur- 
suance of  this  authority,  the  legislature  has  bestowed  upon  such 
courts  jurisdiction  as  follows: 

Civ.  Prac.  Act.  §626.  "There  shall  be  in  each  county  a 
probate  court,  within  the  jurisdiction  conferred  by  this  chap- 
ter." 

The  jurisdiction  conferred  by  the  chapter,  so  far  as  it  affects 
this  case,  is  as  follows: 

Civ.  Prac.  Act,  §627.  "The  probate  court  shall  have  power 
to  open  and  receive  the  proofs  of  last  wills  and  testaments,  and 
to  admit  them  to  probate;  to  grant  letters  testamentary  of  ad- 
ministration and  of  guardianship,  and  to  revoke  the  same  for 
cause  shown,  according  to  law ;  to  compel  executors  and  admin- 
istrators and  guardians  to  render  an  account  when  required,  or 
at  the  period  by  law  designated;  to  order  the  sale  of  the  prop- 
erty of  estates,  or  belonging  to  minors;  to  order  the  payment 
of  debts  due  by  estates;  to  order  and  regulate  the  partitions 
of  property  or  estates  of  deceased  persons;  to  compel  the  at- 
tendance of  witnesses;  to  appoint  appraisers  or  arbitrators;  to 
compel  the  production  of  title  deeds,  papers  or  other  property 
of  an  estate  or  of  a  minor,  and  to  make  such  other  orders  as  may 
be  necessary  and  proper,  in  the  exercise  of  the  jurisdiction  con- 
ferred on  the  probate  court." 

Here  is  the  jurisdiction  of  the  probate  courts,  as  it  relates  to 
the  settlement  of  estates,  and  it  will  be  observed  that,  although 
the  court  can  make  all  the  necessary  orders  in  the  premises,  it 
cannot  render  judgments. 

By  \nrtue  of  this  section,  the  probate  court  is  clothed  with 
authority  to  appoint  administrators,  and,  therefore,  to  place  in 
their  hands  the  property  belonging  to  estates,  and  to  compel  a 
.settlement  and  the  distribution  of  the  property.  And  by  ap- 
I)ropriate  legislation,  and  in  order  to  carry  out  and  to  exerci.se 
the  jurisdiction  conferred  by  the  foregoing  section,  the  probate 
court  has  the  authority  to  cause  the  administrator  to  file  an 
inventory  of  the  estate ;  to  cite  such  administrator  to  render  an 
account  at  any  time ;  to  hear  exceptions  to  his  accounts ;  to  hear 


156  NATURE  AND  FORMS  OF  ACTIONS.  [CUAP.  I. 

charges  against  him  or  other  persons  for  embezzling  the  prop- 
erty of  the  estates,  and  also  to  hear  charges  as  to  the  commis- 
sion of  waste  by  such  administrator.  All  these  powers  and 
this  authority  necessarily  grow  out  of  the  jurisdiction  conferred 
by  section  627,  and  are  purely  of  probate  jurisdiction,  and  are 
not  affected  by  the  $500  limitation,  contained  in  section  2  to  the 
amendment  to  Organic  Act,  because  they  are  not  civil  actioas. 
All  this  authority  is  necessary  to  properly  preserve  and  admin- 
ister an  estate.  But  it  was  not  contemplated  by  the  legislature 
that  judgments  could  be  rendered  against  an  administrator  in 
any  of  these  cases,  for  the  probate  court,  when  exercising  its 
probate  jurisdiction  as  conferred  by  section  627,  makes  orders 
but  does  not  render  judgments.  And  so  it  is,  if  the  accounts 
of  an  administrator  show  a  deficiency,  the  court  can  order  the 
amount  due  from  the  administrator  to  be  paid  to  the  persons  le- 
gally entitled  to  receive  the  same,  and  if  the  order  is  not  obeyed, 
the  only  remedy  is  to  bring  a  civil  action  in  a  court  of  com- 
petent jurisdiction  for  a  judgment.  And  so  upon  an  order  for 
distribution  the  probate  court  can  enforce  the  order,  but  if  the 
distributive  share  is  not  paid  as  ordered,  the  order  and  proceed- 
ings of  the  probate  court  lay  the  foundation  for  a  civil  action, 
where  judgment  and  execution  can  be  had.  Therefore  it  is 
that  an  action  to  compel  an  account  to  be  rendered,  to  hear 
exception  to  accounts,  for  embezzling  the  assets,  for  waste 
against  an  administrator,  or  for  the  distribution  of  an  estate, 
are  not  civil  actions,  but  proceedings,  and  come  within  the  di- 
rect line  of  probate  jurisdiction. 

The  case  before  us  was  for  waste,  that  is,  the  administrator 
was  charged  with  receiving  about  $1,800  belonging  to  the 
estate  and  failing  to  account  for  the  same.  There  is  no  doubt 
but  that  the  probate  court  had  authority  to  inquire,  in  a  sum- 
mary manner,  as  to  the  facts  charged,  and  to  make  an  order 
thereon,  but  not  to  render  a  judgment,  because  the  mode  of  trial 
is  not  such  as  would  support  and  make  valid  any  judgment  that 
might  be  rendered.  That  this  is  the  meaning  of  the  statute  is 
evident.  Section  274  of  the  act  concerning  administrators  and 
executors,  provides:  "Upon  such  application  (an  application 
charging  the  administrator  with  waste)  the  court  shall  direct  an 
issue  to  be  made  up,  whether  there  be  waste  or  not,  which  shall 
be  tried  as  demands  against  the  estate." 

How  are  demands  against  the  estate  to  be  tried?     The  same 


g£C.   3.]  DEER  LODGE  COUNTY  V.  KOHRS.  !->' 

act  section  201,  answers  this  question:  "The  probate  court 
shall  h.ar  and  determine  all  demands  in  a  summary  way  with- 
out the  form  of  pleading,  and  shall  take  the  evidence  of  com- 
petent witnesses,  or  other  legal  evidence." 

Then   if  the  administrator  is  charged  with  the  commission  of_  >,^^  .  ^ 
waste,  th^l^tter  is  to  be  tried  as  demands_ag_amst Ihe^e^taLe^aLe  ^^^ 
To~he  tried,  that  is_inAJu^iar^_ia:^  and  wit^^SL^ifia^  ^^^^  ^ 
^j^adifl^.     The-  statute,  both  as  to  demands  against  the  estate  ^^ 
TuT^io  waste,  provides  for  the  rendition  of  a  judgment     But  ^?^-^— 
can  a  judgment  be  rendered  in  this  summary  way  without  a 
legal  formal  trial?  Can  a  judgmenn3ej;endered  v^^ 
ings,  and  without  thTl^SElr^tioiLof  ajijssuej   ^^hat  would 
^{^trtviaTdet^v^^e,  and  could  it  be  plead  in  bar?     A  bar 
to  what.  There  is  nothing  to  show  upon  what  the  judgment  was 
founded,  and  nothing  by  which  any  one  could  be  informed  as    o 
what  was  tried  and  determined  by  the  judgment.     The  whole 
proceeding  would  show  simply  a  judgment,  rendered  upon  an 
undefined  issue,  without  pleadings,  and  as  to  what  was  tried,  or 
what  was  left  untried,  no  one  could  guess,  much  less  legally  de- 
termine.    Such  a  judgment  rendered  in  this  summary  manner 
would  not  bar  a  civil  action,  in  a  court  of  competent  jurisdic- 
tion upon  the  same  subject  matter,  so  that  the  rendition  of  such 
a  judgment,  by  the  probate  oourt,  would  amount  simply  to  an 
order  and  that  is  what  was  contemplated  by  sec.  627,  wherein 
iurisdiction  is  conferred.  .  .  . 

o      What  is  a  civil  action?  It  is  an  action  wherein  an  is.sue  is 
presented  for  trial  formed  by  the  averments  of  the  complaint, 
and  the  denials  of  the  answer,  or  the  replication  to  new  matter, 
and  the  trial  takes  place  by  the  introduction  of  legal  evidence 
to  support  the  allegations  of  th.  pleadings,  and  a  judgment  in 
such  an  action  is  conclusive  upon  the  rights  of  the  P^^J^' ^°%  ^^^W^ 
could  be  plead  in  bar.    But  ^  action,  the  issues  of  which  ar^     -^^ 
made  up  in  a  summar>-  wajr^without  pleadings,  withojitjjor-  v-^^.^--^ 
m^i^,  without  any  dofil^-  means  of  knowmj^^^at  isjobe  ,^^  ^ 
tried    an  undefined:~5Hrarrangement,    a  sort   ot   inquisition,  ,_,^,r^ 
;^h^ch^ii^^re  made  In  the  dark,  and  where  parties  can  have  ^c^-^ 
depositions  taken  at  his  own  expense,  but  not  otherwise,  as  pro-   U.^ 
vided    in   section   202,   even   if  testimony  should   be   thought   e.^^^- 
necessary  in  such  a  trial,  cannot  be  dignified  by  the^ame  of  a      >^->- 
" civil  action,"  and  it  hardly  reaches  the  dignity  oi  a  "proceed- 


158  NATURE  AND  FORMS  OF  ACTIONS.  [ChAP.  I. 

^3^Sb^  viAA)  -  We  therefore  conclude  that  proceedings  to  establish  demands 
5^^,,;,.^\^  against  an  estate,  or  to  charge  an  administrator  with  waste  are 
J^^Hw^-  not  civil  actions  within  the  meaning  of  the  Organic  Act,  and  are 
jcjv^  ^  W-^-*^  ^affected  by  the  $500  ISitatlon  contained  in  the   amended 

'■^^^'"^    act.    *     *     *  ~  I 

c^oj.  fp  s  cn>  •  Judgment  affirmed. 

^v^Wi^*^   — • 

\^  *Affirmed  on  the  ground  that  the  Statute  did  not  provide  for  an 

appeal  in  such  cases. 


CHAPTER  II. 

PARTIES  TO  ACTIONS. 
Section  1.     The  Real  Party  in  Interest 

"The  freneral  rule  is,  that  the  action  should  be  brought  in 
the  name  of  the  party  whose  legal  right  has  been  ait'ected, 
against  the  party  who  committed  the  injury,  or  by  or  against 
his  personal  representative;  and  therefore  a  correct  knowledge 
of  legal  rights,  and  of  wrongs  remediable  at  law,  will,  in  gen- 
eral, direct  by  and  against  whom  the  action  should  be  brought." 
— C kitty's  Pleadings,  5  Am.  Ed.  1. 

Code  Provisions: 

"Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  except  that  an  executor  or  administrator,  a 
trustee  of  an  express  trust,  or  a  person  expressly  authorized  by 
statute,  may  sue,  without  joining  with  him  the  pei-son  for  whose 
benefit  the  action  is  prosecuted.  A  person,  with  whom  or  in 
whose  name,  a  contract  is  made  for  the  benefit  of  another,  is  a 
trustee  of  an  express  trust  within  the  meaning  of  this  section." 
—X.  Y.  Code  Civ.  Proc.  ^liO. 

"Every  action  shall  be  i)rosecuted  in  the  name  of  the  real 
party  in  interest,  except  as  othervvise  provided  in  the  next  suc- 
ceeding section ;  but  this  section  shall  not  be  deemed  to  author- 
ize the  assignment  of  a  thing  in  action  not  arising  out  of  a  con- 
tract."—/j".  S.  1899  {Mo.),  ijiO 

An  executor  or  administrator,  a  trustee  of  an  express  trust, 
or  a  person  expressly  authorized  by  statute,  may  sue  in  his 
own  name  without  joining  with  him  the  person  for  whose  benefit 
the  suit  is  prosecuted.  A  trustee  of  an  express  trust,  within 
the  meaning  of  this  section,  shall  be  construed  to  include  a  per- 
son with  whom  or  in  whose  name  a  contract  is  made  for  the 
benefit  of  another.—/^.  &.  1899  {Mo.),  1541. 

159 


260  PARTIES  TO  ACTIONS.  [ChAP.  II. 

V  RICHARDSON  v.  MEANS. 

22  Mo.,   495.     [1856.] 

This  was  an  action  commenced  June  17,  1853,  by  Maria  L. 
Richardson  (the  husband  having  afterwards  been  made  a  party 
by  an  amended  petition)  for  the  recovery  of  a  female  slave  and 
her  two  children,  alleg'^d  in  the  petition  to  have  been  wrong- 
fully taken  by  the  defendant,  i\Iay  1,  1849,  and  unlawfully  de- 
tained  by  him. 

Defeoidant,  in  his  answer,  denied  the  title  of  the  plaintiff, 
and  claimed  title  in  himself,  and  relied  upon  a  bill  of  sale  to 
himself,  dated  May  1,  1848,  of  the  negress  and  one  child,  exe- 
cuted by  Thomas  R.  Richardson,  husband  of  plaintiff,  Maria, 
"nd  co-plaintiff  in  this  action. 

To  sustain  the  wife's  right,  she  relief  on  a  deed  of  gift  from 
lier  father,  William  C.  Bruce,  dated  April  1,  1845,  by  which, 
in  consideration  of  love  and  affection  toward  the  plaintiff',  his 
daughter,  he  conveyed  the  female  slave  in  controversy  to  one 
Littleton  Jozner,  "upon  trust,  that  the  said  Jozner,  his  exe- 
cutors, etc.,  shall  permit  my  said  daughter  to  hold  possession 
of  and  take  the  use,  hire  and  profits  of  the  said  Maria  and  her 
increase  to  her  sole  and  separate  use  during  her  life,  independ- 
ent of  her  said  husband ;  and  at  the  death  of  my  said  daughter, 
the  said  Maria  and  her  increase  to  be  equally  divided  between 
her  children,  etc."     *     *     * 

The  jury  found  for  the  defendant,  and  judgment  was  given 
accordingly.     Plaintiffs  appealed. 

Leonard,  J.,  delivered  the  opinion  of  the  court. 
We  cannot  reverse  this  judgment,  no  matter  how  much  we 
may  regret  that  parties,  by  a  slip  in  the  form  of  proceedings, 
should  subject  themselves  to  costs  and  delay  in  the  judicial  en- 
forcement of  their  rights.  The  instructions  given  are  correct  in 
point  of  law,  and  this  seems  to  be  admitted ;  but  the  objection  is, 
that  the  one  given  by  the  court  upon  its  own  suggestion  was 
not  warranted  by  an  evidence  in  the  cause,  and  that,  although 
correct  in  the  abstract,  it  had  the  effect  of  misleading  the  jury. 
If  this  could  be  made  apparent  to  us,  it  might  furnish  sufficient 
ground  for  reversing  the  judgment  in  a  case  where  the  reversal 
would  avail  the  party.  Here,  however,  the  plaintiffs  have 
stated  themselves  out  of  court,  and,  therefore,  if  the  jury  were 
misled,  it  resulted  in  no  injury  to  them;  for  the  reason  that,  ac- 


Sec.  1.]  RICHARDSON   V.    MEANS.  161 

cording  to  their  own  showing,  they  had  no  case  entitling  them  to 
recovery.  The  plaintiff's  title  is  derived  from  the  instrument 
of  gift  executed  by  the  father,  which  vests  the  legal  ownership 
in  the  trustee  for  the  use  of  the  wife  during  her  life,  and  upon 
her  death  for  the  use  of  her  children,  and  the  action  is  to  re- 
dress a  wrong  done  to  the  legal  ownership,  being  substantially 
an  action  for  the  conversion  of  the  plaiutitf 's  slaves.  Under  the 
old  form  of  proceeding,  this  suit  must  have  been  brought  by  the 
trustee  at  law;  but  if,  from  any  caiLse,  the  legal  ownership  could 
not  have  been  made  efYeetual  for  the  protection  of  the  wife's 
equitable  right,  the  courts  would,  at  her  suit,  upon  a  proper 
statement  of  facts,  all  the  necessary  parties  being  before  them, 
have  administered  the  appropriate  equitable  relief.  But  it  is 
suppos«'d  that  all  this  is  changed  by  the  new  code,  which  is  true 
to  some  extent.  It  mast  Ix^  ob.served,  however,  that  the  code 
has  not  changed  the  rights  of  parties,  but  only  provid-'d  new 
remedies  for  their  enforcement;  it  has  not  abolished  the  dis- 
tinction between  equitable  and  legal  rights,*  but  the  distinction 
between  legal  and  eciuitable  remedies,  so  far  at  least  as  to  provide 
that  one  form  of  suit  shall  be  used  for  the  enforcement  of  both 
classes  of  rights.  The  ca.se  made  upon  th.-  record  was  for  legal 
relief;  but  the  ease  made  by  th.'  plaintiffs,  in  proof,  was  of  a  dif- 
ferent charaeter. 

It  was  the  duty  of  the  trustees  to  protect  the  legal  ownership  uV.  t^^  ^^ 
from  violation^  and  to  preserve  the  property  for  thjLU.se  of  the  ^  ^,,,ju-j^^ 
parties  beneficially  interested  as  they  should  nspectively  be-  y^^^^^^^  ^^ 
come  entitled ;  and  jf,  as  bef(jre  remarked,  _there_ii:i:ie_aiiiL-ab.-  ^^.^ScvJU,,  ^ 
stacles  in  the  way  of  the  l>".:al  rmiedy,  or  the  trustee  refus^HlJo  ^^  .^^^^^^ 
do  his  dutj%then,  upon  a  Drop.'r  ca.se  stat.-d.  and  the  proper  Vrv.,,;,.^^  5 
•^^rtTeTgelnglnade,  the^courts  woukl.  in  ;t  eivil  suit  under  the_  ^  Jjj^ 
code.  affoTd  relief  according  to  th>M^"cipl>s  of  equity j  and  i 
the~present  judgment  cannot  be  plead.'d  in  bar  of  any  equitable 
relief  that  shall  b.-  thus  sought  by  the  wife. 

The  judgment  must  be  affirmed.  Lo^    ^Vs 

of  an<'t°«^'^',*°*  '?"",'„  ,,',,  i,  as  much  the  subject  of  ownership  as  Is  a  legal 
the  enultahle  obl'^a*'^"  "''^"''  ^^h^.urh  ownership  Is  not  recognized  by  the 
obligation.  ^"''^^^V^w  is  thatX  Thine  Itself  which  is  the  subject  of  the  owner- 
X'n  e.?^Te:iu\t^ble  oXatlon^'u  not  recognized  by  t^em.-Lan^ell.  Brief 
Survey  Equity  Jurisdiction,  p.  1. 

11 


j^g2  PARTIES  TO  ACTIONS.  [CUAP.    II. 

PECK  V.  NEWTON. 
46  Barbour,  173.    [N.  Y.  Sup.  1863.] 

By  the  court,  Parker,  J.:  This  is  an  action  to  recover  the 
possession  of  land.  The  plaintiff  rests  the  right  of  the  school 
district  (which  he  represents)  to  the  land  in  (luestion,  upon  an 
alleged  exchange  made  by  the  district  with  Jahit-l  Parsons,  in 
1834.  The  district  was,  at  that  time,  in  possession  of  a  school- 
house  and  lot,  on  the  south  side  of  the  street,  holding  under  one 
Parsons  by  some  sort  of  contract.  It  became  desirable  to  re- 
move the  school-house  from  that  site.  Parsons  owned  the  land 
on  the  opposite  side  of  the  street,  and,  at  a  special  meeting  of 
the  inhabitants  of  the  district,  Parsons  agreed,  verbally,  with 
the  district,  to  exchange  with  them,  and  give  them  a  site  on 
the  north  side  of  the  street  for  their  site  on  the  south  side.  In 
pursuance  of  this  agreement  he  staked  out  a  piece  of  land,  in- 
cluding the  piece  in  question,  on  the  north  side.  The  school- 
house  was,  the  same  year,  moved  across  the  street  to  it,  and  the 
contract  for  the  site  on  the  south  side,  which  the  district  held 
from  Parsons,  was  given  up  to  him,  and  he  sold  the  site  to  an  ad- 
jacent owner.  No  deed  was  given  by  him  to  the  district  for  the 
site  on  the  north  side,  though  he  agreed  to  give  one.  The  land 
staked  out  measured  nearly  a  quarter  of  an  acre.  The  school- 
house  was  built  upon  one  corner  of  it,  and  the  lot  was  never 
fenced  out  by  the  district.  Some  twelve  or  fifteen  years  before 
the  trial  (being  ten  to  thirteen  years  after  the  exchange),  the 
defendant,  who  occupied  the  Parsons  farm,  fenced  in  all  of  the 
site  so  staked  out,  except  the  part  on  which  the  school-house 
stands  and  a  small  piece  in  front  and  rear,  and  has  since  oc- 
cupied it  for  farming  purposes.  It  is  this  piece,  so  fenced  by 
the  defendant,  that  is  the  subject  of  the  controversy  between  the 
parties. 

The  plaintiff  has,  as  it  will  be  seen,  at  most  a  mere  equitable 
title  to  the  piece  of  land,  the  possession  of  which  he  now  .seeks 
to  recover.  Can  he  maintain  this  action  on  such  title?  It  is 
observed  that  this  is  what,  before  the  Code,  was  called  an  action 
in  ejectment.  No  equitable  interest  in  the  premises  is  set  up  in 
the  complaint,  and  no  equitable  relief  is  demanded,  the  plaintiff 
alleging  therein  that  the  district  has  lawful  title  as  the  owner  in 
fee  simple,  so  that  the  possession  is  not  sought  as  incidental  to  a 
specific  performance,  or  other  equitable  relief,  but  the  plaintiff 


Sec.  1.]  PECK  V.  newton.  163 

counts  upon  his  title,  and  demands  judgment  for  the  possession 
of  the  premises. 

Now,  although  the  code  has  abolished  the  distinction  between 
actions  at  law  and  suits  in  equity,  so  far  as  it  regards  the  forms 
of  procedure,  still  the  principles  by  which  the  rights  of  the 
parties  are  to  be  determined  remain  unchanged.  ' '  The  code  has 
given  no  new  cause  of  action.  If  under  the  former  system  a 
given  state  of  facts  would  have  entitled  a  party  to  a  decree  in 
e<iuity  in  his  favor,  the  same  state  of  facts  now,  in  an  action 
prosecuted  in  the  manner  prescribed  by  the  code,  will  entitle 
him  to  a  judgment  to  the  same  effect.  If  the  facts  are  such  as 
that,  at  the  eommun  law,  the  party  would  have  been  entitled  to 
judgment,  he  will,  by  proceeding  as  the  code  requires,  obtain 
the  same  judgment."  (Cole  v.  Reynolds,  18  N.  Y.  Rep.,  76.) 
As  this  ease  stands,  the  defendant  is  a  stranger  to  the  trans- 
action between  the  district  and  Parsons.  He  offered  to  prove 
himself  a  grantee  of  Parsons,  but  the  evidence  was  objected  to 
by  the  plaintiffs  and  excluded.  There  is  no  privity,  then,  be.- 
tween  t^e  defendant  and  Parsons, 

Even  if  I'arsons  hinis<'lf  were  defendant,  or  any  |)erson  in 
privity  with  him,  the  e<iuitable  rights  of  the  parties  could  not  be 
determined  in  this  action  upon  the  issues  here  presented.  Under 
proper  pleadings,  undoubtedly,  the  ab.solute  rights  of  the  parties 
in  that  case,  whether  legal  or  e(iuitable,  or  both,  could  be  deter- 
mined in  one  action.  Hut  this  action J)eing  against  a  8trange»; 
in  possession,  by_thRj)laintiff'.  restintTrnTTa  legal  but  a  mere 
equitable  title,  I  am  unable  to  see  on  what  principle  he  is  en- 
tltlrd  to  recover^  TheTU-fendant  is  not  the  party  who  is  bound 
to~convey  to  the  plaintiff;  so  that  the  proper  parties  to  litij^ 
the  question  of  the  plaintjffjt  etiuitable  title  are  not  before  the 
court,  As  between  other  parties,  the  rule,  I  apprehend,  is,  as 
it  has  always  been  in  this  action,  that  the  plaintiff  can  recover 
only  on  his  legal  title.  (Doe  v.  Staple,  2  T.  R.,  684;  Doe  v. 
Wroot,  5  P^ast,  132 ;  Jackson  v.  Pierce,  2  John.  221 ;  Jack.son  v. 
Chase,  Id.  84;  Moore  v.  Spellman,  5  Denio,  225.) 

Before  the  code,  what  would  have  b«»en  the  relative  rights  of 
the.se  parties?  Clearly  no  action  at  law  could  have  been  main- 
tained by  the  plaintiff  against  the  defendant.  Neither  can  I  see 
any  ground  in  which  a  suit  in  equity  could  have  been  main- 
tained. The  rights  of  the  parties  to  the  alleged  exchange  mu.st 
first  have  be<M]  settled  by  a  court  of  cduity.  and  a  specific  per- 


164 


PARTIES  TO   ACTIONS.  [ChAP.   II. 


formance  of  that  contract  enforced  against  Parsons,  or  those 
holding  the  legal  title  from  him,  before  the  plaintifle  could  have 
maintained  any  action  against  the  defendant.  Even  if  this 
could  have  been  accomplished  in  a  single  suit,  by  making  the 
defendant  a  party  to  the  suit  against  Parsons,  for  the  specific 
performance,  still  without  a  decree  against  Parsons,  none  could 
have  been  had  against  the  defendant.  To  allow  the  plaintiif  to 
recover,  then,  against  the  defendant,  in  this  action,  would  be 
admitting  a  new  cause  of  action  which  did  not  before  exist, 
either  at  law  or  in  equity. 

In  regard  to  what  shall  constitute  a  cause  of  action,  the  code, 
as  intimated  in  Cole  v.  Reynolds  (supra),  has  made  no  change. 
The  extent  of  the  change  brought  in  by  it,  so  far  as  this  ques- 
tion is  concerned,  is,  I  apprehend,  that  now,  as  stated  in  Crary 
V.  Goodman  (2  Kern,  268),  "the  question  in  an  action  is,  not 
whether  the  plaintiff  has  an  equitable  or  a  legal  right,  but 
whether,  according  to  the  whole  law  of  the  land,  applicable  to 
the  case,  the  plaintiff  makes  out  the  right  which  he  seeks  to  es- 
tablish." As  already  stated,  the  law  of  the  land  never  allowed 
a  plaintiff,  either  at  law  or  in  equity,  to  recover  in  a  case  like 
this.  And  if  before  the  code  he  could  not  have  recovered,  in 
any  court,  upon  such  a  cause  of  action  as  he  here  seeks  to  es- 
tablish, he  cannot,  since  the  code. 

The  defendant,  after  all  the  evidence  was  given,  moved  for 
a  non-suit  on  the  grounds,  among  others,  "that  the  plaintiff  had 
ju^.  ^U-o^  not  proved  a  cause  of  action,  nor  the  cause  of  action  alleged  in 
^vJu*Q_iu  the  complaint."  Also,  that  thejlaintiff 's  rights,  if  any,  are 
ij\>Su.  ^JLs..  equitable,  and  he  must  sue  in  equity,  and  not  otherwise.  These 
^s^\A-OL06v^  grounds,  I  think,  sufficiently  state  the  objection  above  inti- 
A^s^  mated,  to  the  plaintiff's  recovery.  He  had  not  proved  a  cause 
'"-^•^ ,  '^--'Aof  action  entitling  him  to  a  recovery  against  the  defendant,  and 
^-^w  '^^"■^ghould  have  sought  relief  in  an  equitable  action  against  all  the 
\^*^"^^  parties  obligated  to  grant  him  his  equitable  rights.  I  think, 
^^T"^^  therefore,  the  non-suit  should  have  been  granted. 
jaAA.«.  iJtouJ  There  are  numerous  other  objections,  made  by  the  defend- 
:  U.<>_o  w^  ant's  counsel  to  a  recovery;  but  as  this  disposes  of  the  case,  it  is 
^*^•^*»-^  *^"     unnecessary  to  consider  them. 

^^^■^  ^  ^  I  am  of  the  opinion  that  a  new  trial  should  be  granted. 

'"^''"'^^^  Ordered  accordingly. 


Sec.  1.]  BAILEY  V.  WINN.  165 

BAILEY  V.  WINN. 

101  Mo.  649.     [1890.] 

Ejectment  for  certain  lands  in  Macon  county.  On  writ  of 
error  by  defendant  to  reverse  the  jud^rment  below  in  favor  of 
plaintiff. 

Black,  J 2.     The  second  alleged  title  of  the 

plaintiff  is  this :  Edward  Edwards  and  his  wife,  by  their  mort- 
^'age  deed,  dated  January  11,  1871,  conveyed  the  one  hundred 
and  twenty  acres  of  land  to  David  W.  Williams,  to  secure  a  note 
of  the  same  date,  executed  by  Edwards  and  payable  to  Wil- 
liams for  six  hundred  and  seventy  dollars,  due  in  two  years. 
David  W.  Williams  acknuwk'dged  satisfaction  in  full  on  the 
margin  of  the  record,  under  date  of  August  13,  1879.  Plaintiff, 
however,  produced  in  evidence  the  note  with  two  assignments 
indorsed  thereon,  one  from  Williams  to  Edward  A.  Edwards 
and  the  other  from  him  to  plaintiff's.  Edward  A.  Edwards  tes- 
tified that  he  had  purchased  this  note  from  Williams  on  Aug. 
9,  1879,  and  had  it  assigned  to  himself  on  that  day,  and  that 
the  marginal  satisfaction  was  made  without  his  knowledge  or 
consent,  and  after  he  had  become  the  o^^'ner  of  the  note.  He 
says  he  had  i)reviously  contracted  for  the  note,  had  made  sev- 
eral payments,  and  that  the  payment  of  $206.20,  on  Aug.  9, 
was  the  last  one.  Concede  that  Edward  A.  Edwaids  became 
the  owner  of  the  note  by  assignment,  and  that  he  assigned  it  to 
plaintiff,  still  we  do  not  see  how  the  plaintiff  can  recover  in 
this  action  of  ejectment  on  tlie  mortgage.  There  is  no  doubt 
but  a  mortgagee,  after  condition  broken,  may  recover  in  eject- 
ment again.st  the  mortgagor  and  those  claiming  under  him.  Sut- 
ton v.  Mason,  38  Mo.  120;  Johnson  v.  Houston,  47  Mo.  230.  The 
a.ssignment  of  the  debt  carries  the  security,  so  that  the  a.ssignee 
may  foreclose  the  mortgage.  But  the  mortgagee  may  recover  in 
ejectment,  because,  after  condition  broken,  he  is  in  law  re- 
garded  as  the  o\\'ner  of  the  estate^  The  legal  title  vests  in  hira 
Tor  the  protection  of  the  debt,  but  for  no  other  purpose.  Before 
the  assignee  of  the  debt  can  recover  in  ejectment,  he  must  show 
a  transfer  of  this  legal  estate  to  himself.  We  have  held  that 
the  beneficiary  in  a  deed  of  trust  to  secure  the  payment  of  a 
debt  cannot  maintain  ejectment,  after  condition  broken.  Siemers 
V.  Shrader,  8S  ^Mo.  20.  So  in  the  case  of  an  ordinary  mortgagf, 
the  mere  assignment  of  the  debt  does  not  vest  the  title  of  the 


166  PARTIES  TO  ACTIONS.  [CUAP.   II. 

^.A^. .  oLoo^' mortgagee  to  the  jandjnjjie  assignee.  Jones  on  Mortgages  [4th 
vAiL.  >\  ^Au^  ed.]  sec.  818.  In  the  present  ease,  there  was  no  assignment  of 
g^^^^^^^the  mortgage  or  transfer  of  the  estate  by  the  mortgagee,  and  it 
4^  vw^ikiSc  follows  from  what  has  been  said  that  plaintiif  cannot  recover 
^•y-^  -  ^^  on  the  mortgage,  even  if  he  is  the  owner  and  holder  of  the  note. 
«"'  #     *       ~ 

The  judgment  is  reversed  and  the  cause  remanded.     All  con- 

WESTERN  R.  R.  CO.  v.  NOLAN. 

48  N.  Y.  513.     [1872.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  third  judicial  district,  affirming  a  judgment  dis- 
missing plaintiff's  complaint. 

The  action  was  brought  to  restrain  the  defendants,  as  assess- 
ors of  the  City  of  Albany,  from  assessing  the  sum  of  $500,000, 
for  personal  property,  against  Joseph  C.  Y.  Paige  and  Thomas 
AV.  Olcott,  trustees,  for  the  purpose  of  taxation.  The  said  sum 
was  held  by  Paige  and  Olcott  as  trustees,  under  certain  tri- 
partite contracts,  dated  in  1840,  1841  and  1849,  between  the 
City  of  Albany  of  the  first  part,  the  Albany  and  West  Stock- 
bridge  Railroad  Company  (a  corporation  of  the  State  of  New 
York),  of  the  second  part,  and  the  plaintiff  (a  corporation  of 
the  State  of  Massachusetts),  of  the  third  part.  Under  these 
contracts  the  city  of  Albany  issued  its  bonds  to  the  plaintiff'  for 
$1,000,000,  payable  one-fourth  in  twenty-five  years,  one-half  in 
thirty  years,  and  the  remaining  one-fourth  in  thirty-five  years 
from  June,  1840,  with  interest  coupons  at  six  per  cent  per  an- 
num, payable  semi-annually ;  the  plaintiff  agreeing  to  apply  one- 
tenth  of  the  proceeds  of  the  bonds  to  the  creation  of  a  sinking 
fund,  to  be  held,  managed  and  controlled  by  two  trustees,  one  of 
whom  should  be  the  chamberlain  for  the  time  being  of  the  city 
of  Albany,  and  the  other  to  be  nominated  by  the  plaintiff,  who 
was  required  to  keep  the  fund  invested;  together  with  an  addi- 
tional one  per  centum  on  the  amount  of  the  said  bonds,  to  be 
contributed  annually  to  the  said  fund  by  the  plaintiff,  and  accu- 
mulate the  said  fund  for  the  purpose  of  retiring  the  said  bonds 
at  maturity,  paying  the  surplus  to  the  said  plaintiff.    The  resi- 


Sec.  1.]  W-ESTERN  R.  R.  CO.  V.  NOLAN.  167 

due  of  the  proceeds  of  the  said  bonds  the  plaintiff  agreed  to 
apply  to  the  construction  of  the  Albany  and  West  Stockbridge 
railroad,  ^vhich  completed  a  through  line  of  railroad  communi- 
cation from  the  eastern  terminus  of  the  plaintiff's  railroad  in 
Massachusetts  to  the  city  of  xVlbany.  The  city  of  Albany  also 
agreed  to  subscribe  for  $1,000,000  in  the  stock  of  the  Albany 
and  "West  Stockbridge  Railroad  Company,  to  be  held  by  said 
city  in  consideration  of  the  issue  of  said  city  bonds,  of  which 
stock  the  plaintiff  was  to  become  the  owner  as  fast  as  it  retired 
the  said  bonds;  and  the  agreement  appears  to  contemplate  that 
the  plaintiff'  would  become  the  lessee  of  the  said  West  Stock- 
bridge  railroad,  until  the  plaintiff  became  the  owner  of  said 
railroad  by  payment  of  the  said  city  bonds;  and  the  plaintiff 
also  agreed  to  pay  the  interest  on  the  bonds  as  it  became  due, 
as  a  rent  for  the  use  of  the  said  West  Stockbridge  railroad. 
This  agreement  was  carried  into  effect;  the  said  bonds  were 
Issued,  and  were  outstanding  at  the  commencement  of  the  action ; 
and  the  said  sinking  fund  amounted,  with  all  the  annual  pay- 
ments of  the  plaintill"  thereto,  and  the  accunndations  thereon  to 
$916,489.41,  of  which  the  said  Paige  and  Olcott  were  then  in 
I)ossession  and  the  actual  trustees.  This  fund  was  invested  by 
the  trustees  in  the  name  of  the  plaintiff"  and  the  city  of  Albany, 
on  bond  and  mortgage  to  the  amount  of  $322,529,  and  the  resi- 
due in  the  stocks  of  the  State  and  general  government,  and  in 
bonds  of  the  city  and  county  of  Albany,  cash  on  hand,  and  bonds 
of  the  New  York  Central  Railroad  Company.  The  judge,  before 
whom  the  action  was  tried  without  a  jury,  found  that  the  de- 
fendants were  assessors  of  the  city  of  Albany ;  that,  as  such, 
they  had  determined  that  the  said  fund  was  liable  to  taxation, 
and,  in  pursuance  of  their  determination,  had  entered  in  the 
assessment  roll  of  the  said  city  the  amount  of  $500,000,  for  per- 
sonal property  in  the  names  of  Thomas  W.  Olcott  and  Joseph  C. 
Y.  Paige,  trustees  as  aforesaid.  That  the  plaintiff*  had  no  other 
property  in  the  city  and  county  of  Albany,  except  office  furni- 
ture of  the  value  of  fifty  dollai-s.  That  the  plaintiff  had,  in  dut^ 
time,  presented  to  the  defendants,  as  assessors,  proof  of  the 
said  facts,  and  requested  them  to  strike  the  said  assessment  from 
the  assessment  roll,  and  that  the  a.ssessors  declined  to  accede  to 
it,  but  determined  to  assess  the  said  fund  for  the  purposes  of 
taxation.  That  the  defendants  were  not  of  sufficient  pecuniary 
responsibility  to  respond  to  the  plaintiff'  in  damages  if  it  should 


168  PARTIES  TO  ACTIONS.  [CilAP.   11. 

be  determined  that  the  said  fund  was  not  liable  to  taxation. 
That  the  plaintiff  is  a  foreign  corporation,  created  under  the 
laws  of  the  State  of  Massachusetts. 

The  plaintiff*  requested  the  judge  to  decide  that  the  said  fund 
was  not  liable  to  be  assessed  for  the  purposes  of  taxation,  and 
that  the  plaintiff  was  entitled  to  an  injunction  restraining  the 
defendants,  as  assessors,  from  assessing  the  said  fund  for  taxa- 
tion, and  from  assessing  the  said  trustees  for  the  said  fund ;  but 
the  said  judge  held  and  decided  that  the  plaintiff  was  not  en- 
titled to  the  relief  demanded,  and  adjudged  that  the  complaint 
be  dismissed  with  costs.  The  plaintiff  duly  excepted  to  such  re- 
fusal to  find  as  requested,  and  to  the  decision  so  made  by  the 
said  judge. 

The  defendants  thereupon  entered  judgment,  dismissing  the 
complaint,  with  costs. 

Leonard,  C.  While  the  plaintiff  has  an  important  interest  in 
the  sinking  fund,  it  is  not  under  its  control  or  management, 
nor  is  the  title  to  it  vested  in  it.  It  has  such  an  interest  as 
would  enable  it  to  compel  an  accounting  by  the  trustees,  or 
maintain  an  action  against  them  for  the  correction  of  an  abuse 
of  the  fund.  The  plaintiff  has  agreed  to  indemnify  the  city 
of  Albany  from  injury  by  losses  to  the  fund,  and  is  thereby 
indirectly  bound  to  maintain  it,  or  to  pay  the  bonds,  amount- 
ing to  $1,000,000,  with  the  interest;  and  the  plaintiff'  is  also 
entitled  to  the  amount  of  the  trust  funds  remaining,  after  the 
said  bonds,  with  the  interest,  have  been  satisfied  or  paid.  Per- 
haps it  might  maintain  an  action  against  third  parties  for  the 
protection  or  defence  of  the  fund,  in  case  the  trustees  should, 
on  request,  refuse  to  institute  the  proper  action  or  proceedings 
for  that  purpose.  The  plaintiff  should  be  regarded  as  a  cestui 
qui  trust,  and  interested  in  the  said  fund.  The  trustees  are  the 
parties  in  whom  the  fnrifl  is  vpstpd  and  whose  duty  it  is  to  main- 
tain and  defend  it  against  wrongful  attack  or  injury  tending 
.  to  impair  its  safety  or  amount.  The  title  to  th,e_f]2nd  being  itj^ 
them,  neither  the  cestuis  qui  trust  nor  the  beneficiaries  can  main- 
*  tain  an  action  in  relation  to  it,  as  against  third  parties,  except  in 
case  the  trustees  refuse  to  perform  their  duty  in  that  respect, 
and  then  the  trustees  should  be  brought  before  the  court  as 
parties  defendant.  There  is  nothing  in  the  case  proving  any 
refusal  or  reluctance  on  the  part  of  the  trustees  to  perform  any 
duty  which  they  ought  to  assume  in  vindicating  the  fund  from 


g£Q   11  WESTERN  R.  R.  CO.  V.  NOLAN.  169 

illegal  assessment  or  taxation.    The  plaintiff  has  not,  for  these 
reasons,  made  any  case  entitling  it  to  bring  this  action. 

There  are  other  technical  objections  to  this  action  which  are 
insurmountable.     •     *     *     *     ♦  Judgment  affirmed. 


V  *A 


WHEELER  V.  ALLEN. 
51  iV.  Y.  37.     [1872.] 


Earl,  C.  The  plaintiff  in  this  action  of  replevin  claimed  to 
receive  scrip  of  the  Great  Western  Insurance  Company  to  the 
amount  of  .$1,:U0,  which  was  issued  in  the  year  1864,  and  scrip 
in  the  same  company  for  $8,570,  issued  in  the  year  1865,  and  he 
recovered  upon  the  trial  for  both  scrips. 

There  are  two  grounds  upon  which  I  hold  this  recovery  was 
erroneous. 

1.     As  to  the  scrip  of  1865,  it  seems  undisputed  that  the  de- 
fendant never  purchased  any  for  the  plaintiff.     lie  was  direct- 
ed to  take  the  plaintiff's  money,  which  was  in  hLs  hands,  and 
invest  it  in  the  scrip  of  that  year.     But  he  did  not  do  so,  but 
used  the  money  for  other  purposes.     It  is  true,  however,  that 
he  gave  plaintiff  a  certificate  June  2,  1865,  stating  that  he  had 
invested  this  money  in  such  scrip,  but  this  certificate  was  un-  ^^^^^^^  ^^    ^ 
true.     While  it  may  be  true  that  an  action  of  replevin  may  he  ,^,^^^^^_^j^  ^^jj^j^ 
maintained  to  recover  property  which  the  defendant  has  had  ^>j<a^  A^i^»cK , ' 
in  his  possession  but  was  wrongfully  disposed  of,  I  know  of  no  ^^^-"-^  oir— >*- 
authority  or  principle  which  will  Muthon/c  a  n-coverv  in  such  -^^^^      ,,^  -it-^ 
an  action  for  property  of  which  thr  (IrFcndant  never  has  had    o.^-^  kjo- due 
the  possession. 

2.     It  seems  to  be  undisputed  that  the  scrip  for  the  $1,310,  i^^  ^^--^^  "^ 

was  issued  toJhe_ defendant  and  stood  in  bis  nnme. Hence,  ho.-^-^^^-^  *^^ 

had  the  legal  title  to  the  same.  In  law  he  lu-ld  the  same  as  trus.-  "^^Vj^  .^^ 
tee,  for  the  plaintiff",  and  as  such  trustee  he  could  be  compelled  ,^^^^,,^va^yUj 
to  account  to  the  plaintiff'  in  an  action  of  equity.  But  an  action  (.^.^.iiAcJ^'t^vvA. 
of  replevin  to  recover  the  scrip  under  such  circumstances  is  a^i^v.^  >^ii-<^.v.^ 
great  novelty.  ThelegaTtitle  was  upver  vested  in  tllP  ^^^^"^^^^^"^'^^•'-^^'^"s^ 
and  his  only  remedy  to  procure  this  scrip  was  bv  an  action  in  ^1  ^      ^   0 

equitX:  ~^  JUu  ^o«l>^!^^wu 

THe"  order  of  the  general  term  should  be  affirmed  and  judg-  p^_,^^^  -iWrtA 
ment  absolute  rendered  against  the  plaintiff  for  costs.  -Ou^--^  "iZ^t^ 

Order  affirmed,  and  judgment  accordingly.  -vw.-^ 


V-    ^\ 


170  PARTIES   TO   ACTIONS.  [CllAP.    11. 

KINGSLAND  v.  CIIRISMAN. 

28  Mo.  App.  308.     [1887.] 

This  is  an  action  in  replevin  for  the  recovery  of  the  posses- 
sion of  certain  personal  property.  The  facts  are  as  follows :  On 
the  fourth  day  of  May,  1884,  one  W.  C.  Everett  sold  to  one 
Stephen  Gaucher  the  property  in  controversy,  for  whieli 
Gaucher  executed  to  Everett  his  promissory  note.  To  secure 
this  note,  Gaucher  executed,  on  the  .same  day,  a  chattel  mort- 
gage on  the  property  to  Everett.  Before  the  maturity  of  the 
note,  Everett  assigned  the  same,  by  writing  his  name  on  the 
back  thereof  and  delivering  it  to  one  Sheldon,  for  a  valuabh- 
consideration;  and,  thereafter,  and  before  the  maturity  of  the 
note,  said  Sheldon,  in  the  same  manner,  assigned  the  note  to 
plaintiff,  for  a  valuable  consideration.  By  the  terms  of  the 
mortgage,  the  mortgagor  was  to  retain  the  possession  of  the 
mortgaged  property  until  default  in  paying  the  note.  After  the 
maturity  of  the  note,  the  debt  being  unpaid,  the  defendants 
were  in  the  possession  of  the  property  mortgaged.  How  they 
acquired  this  possession  does  not  appear.  In  their  answer  they 
pleaded  ownership.  At  the  trial  the  plaintiff,  after  proof  of  the 
foregoing  facts,  rested.  Thereupon  the  defendants  demurred  to 
the  evidence.  The  court  sustained  the  demurrer  and  plaintiff 
has  appealed. 

Phillips,  P.  J.     This  case  presents  the  single  guestion,  can 

the  assignee  of  a  debt,  secured  by  chattel  mortgage,  without  an 

assignment  of  the  mortgage  itself,  maintain,  in  his  own  name, 

the  action  of  replevin  for  the  recovery  of  the  possession  of  the 

mortgaged  property?     The  court  below  held  that  he  could  not. 

At  first  impression  this  question  seems  easily  answered.     But 

in  the  absence  of  any  direct  adjudication  by  our  supreme  court, 

I  find  it,  on  examination  of  the  authorities,  by  no  means  free 

from  embarrassment.     There  is  no  question  of  the  general  prop- 

O^  l*^  \  osition,  that  the  assignment  of  the  note  carried  the  mortgage 

yvoyv^^S^'^- with  it.     The  debt  is  the  principal  thing;  the  mortgage,  which 

'^!^Tf*r'*^s  but  the  security,  is  the  mere  incident  of  the  debt :  and  on  the 

at   WoLcXA<^maxim,   omne  principale,  trahet   ad  se  accessorhitn.  where  the, 

fc4>a.>.,vv^tf^^deM  goes  the  mortgage  follows.     But  the  courts  say  that  this 

following  of  the  mortgage  after  the  debt,  where  only  the  debt  is 

formally  assigned,  is  but  an    equitable    assignment    as   to    the 

mortgage,  and  not  a  legal  transfer.    Thus  Richardson,  J.,  in  An- 


Sec.  l.J  KINGSLAND  V.   CHRISM  AN.  171 

derson  v.  Baumgartner  (27  Mo.  86),  said:  "The  doctrine  is 
well  settled  that  the  transfer  of  a  deed  [debt?]  carries  with  it  in 
equity  the  mortgage  as  a  security."  In  Tisen  v.  People's  Ass'u 
(57  Ala.  331),  Brickell,  C.  J.,  said:  "An  assignment  of  the  debt 
would  in  equity  pass  the  mortgage."  And  likewise,  Wilde,  J., 
in  Grain  v.  Pain  (4  Gush.  485 j,  treats  the  transfer  of  the  mort- 
gage as  an  incident  of  the  debt,  as  an  equitable  transfer.  Ac- 
cordingly, Jones  in  his  work  on  Ghattel  Mortgages,  section  503, 
asserts  the  doctrine  to  be  that:  "The  mortgagee's  legal  inter- 
est does  not  pass  by  his  assignment  of  the  debt.  Such  assignee 
cannot  maintain  replevin  in  his  own  name  for  the  mortgaged 
property ;  though  he  may  in  the  absence  of  any  express  or  im- 
plied stipulation  to  the  contrary,  bring  such  actions  in  the  name 
of  the  mortgagor,  who  holds,  in  such  case,  the  legal  title  in 
trust  for  such  a.ssignee's  benefit."  In  support  of  the  text,  the 
case  of  Ransdall  v.  Tewksbury  (73  Me.  197)  is  cited.  The  case 
fully  sustains  the  proposition.  The  argument  is,  that  the  in- 
terest of  the  mortgagee  in  the  property  vests  solely  by  virtue 
of  the  mortgage,  which  represents  the  property.  Had  no  mort- 
gage been  taken  he  would  have  had  no  property,  title  or  interest 
whatfver  in  the  property.  The  note  in  nowise  had  any  effect 
upon  the  title  to  the  property.  The  whole  office  of  the  note  being 
limited  to  the  payment  of  the  consideration  for  the  property 
sold  by  the  mortgagee  to  the  mortgagor,  the  a.ssignment  of  the 
note  could  not  aff<H;t  the  title  to  the  property  it  was  given  to 
pay  for.  The  assignment  of  the  debt  trave  to  the  assignee  an 
equitable  interest,  at  least,  in  the  mortL^aL^-.  the  mortgagee  hold- 
ing it  in  trust  for  tlic  benefit  of  the  holder  uf  the  debt.  Such 
equitable  interests  are  i)roteeted  by  the  courts  (jf  law,  and  may 
be  enforced  in  the  name  of  the  party  holding  the  legal,  as  dis- 
tinguished from  the  equitable,  title.  This  seems  to  be  the  hold- 
ing in  Mas.sachusetts  and  Alabama.  Grain  v.  Pain,  supra;  Prout 
v.  Root,  116  Mass.  410;  Graham  v.  Rogers,  21  Ala.  498;  see  also 
Ilarman  v.  Barhytt,  31  X.  W.  Rep.  488,  and  note. 

Most  of  the  ca.ses,  which  I  have  been  able  to  find,  where  the 
assignee  was  allowed  to  maintain  the  action  in  his  own  name, 
is  where  the  mortgage  itself  was  assigned  in  writing.  In  such 
case  the  assignee,  without  question,  holds  the  legal  title.  In 
Langdon  v.  Buel  (9  "Wend.  80),  the  action  was  trespass  de  bonis 
asportatis,  brought  in  the  name  of  Langdon,  who  was  the  mort- 
gagee, but  who  h;id  previously  transferred  the  note,  secured  by 


172 


PARTIES  TO  ACTIONS.  [ChaP.   II. 


the  mortgage,  to  one  Pitcher.  Spencer,  C.  J.,  said:  "A  mort- 
gagee of  personal  property,  upon  the  failure  of  the  mortgagor 
to  perform  the  condition  of  the  mortgage,  acquires  an  absolute 
title  to  the  chattel.  The  notes  which  this  mortgage  was  given 
to  secure  appear  to  have  been  assigned  or  transferred  to  one 
Pitcher.  When  they  were  so  transferred  does  not  appear. 
*  *  *  Did  not  the  mortgage  pass  with  the  notes  as  incident 
to  them,  and  should  not  the  action  have  been  brought  in  the 
name  of  Pitcher  instead  of  Langdon?  I  do  not  perceive  how 
such  conclusion  is  to  be  resisted.  A  mortgage  of  real  or  personal 
estate  is  but  an  accessory  or  incident  to  the  debt,  or  the  security 
which  is  given  as  the  evidence  of  the  debt.  The  assignment  of 
the  security  passes  the  interest  in  the  mortgage.  The  mortgage 
can  not  exist  as  an  independent  debt.  If,  by  special  agree- 
ment, it  does  not  accompany  the  security  assigned,  it  is,  ipso 
facto,  extinguished,  and  ceases  to  be  a  subsisting  demand.  If 
the  notes  were  endorsed  or  assigned  to  Pitcher  before  they  be- 
came due  and  before  the  mortgage  was  forfeited,  the  inchoate 
interest  of  the  mortgagee  must  have  passed  with  them.  If  the 
transfer  of  the  notes  was  after  they  fell  due  and  subsequent  to 
the  forfeiture  of  the  mortgage,  then  the  assignment  operated 
as  a  transfer  of  the  interest  of  the  mortgagee,  Langdon,  what- 
ever it  might  have  been,  in  the  mortgaged  chattel ;  and  in  either 
aspect  the  action  of  trespass  should  have  been  brought  in  the 
name  of  Pitcher." 

In  Woodruff  v.  King  (47  Wis.  261),  the  action  was  replevin 
by  an  assignee  of  the  debt;  and  his  right  to  maintain  the  action 
passed  unchallenged  by  counsel  and  court,  with  the  observation, 
that  the  note  being  negotiable,  and  in  the  hands  of  the  plaintiff, 
was  presumptive  evidence  of  ownership ;  ' '  and  the  transfer  of 
the  note  carried  with  it  the  mortgage  security,"  citing  Rice  v. 
Cribb  (12  Wis.  182),  in  which  it  is  said:  "The  transfer  of  the 
notes  carries  with  them  the  interest  in  the  mortgage." 

In  Crow,  McCreery  &  Co.  v.  Vance  (4  la.  440-441),  the  court 
say:  "It  is  the  settled  doctrine  in  equity,  that  the  assignment 
of  a  promissory  note,  secured  by  a  mortgage,  carries  the  mort^ 
gage  with  it;  and  the  assignee  may  maintain  an  action  upon  it 
in  his  own  name,  to  enforce  the  lien.  Mortgages  are  not  con- 
sidered as  conveyances  of  land,  within  the  statute  of  frauds. 
The  right  of  the  mortgagee  is  a  mere  chattel  interest  insepar^ 
able  from  the  debt  it  is  intended  to  secure,  and  transferable  by 


Sec.  1.]  KINGSLAND  V.   CHRISMAN.  173 

a  mere  assignment  of  the  debt,  without  deed  or  writing.  The 
debt  is  the  principal  thing.  The  right  of  the  mortgagee  in  the 
land  is  an  incident  of  the  debt,  and  ceasing  when  the  debt  is 
discharged.  This  doctrine  rests  upon  the  well  established  prin- 
ciples of  courts  of  equity,  which,  under  circumstances  closely 
analogous,  entitle  a  surety,  who  pays  the  debt,  to  every  remedy 
which  the  creditor  has  against  the  principal  debtor  to  enforce 
every  security  and  all  means  of  payment.  By  the  assignment 
of  the  debt,  the  assignee  is  entitled  to  use  all  the  remedies  the 
assignor  might  have  used,  to  enforce  the  lien  of  the  mortgage 
agaiast  the  debtor."  See,  also,  Furbank  v.  Goodman,  5  N.  II. 
450. 

It  seems  to  stand  to  reason  that,  asjlie  debt  and  the  security 
are_jn separable^  so  they  cannot  reside  at  the  same  time  in  differ- 
ent parties,  and  he  who  controls  the  debt  also  controls  the  mort- 
gage, the  assignee  of  the  debt  should  acgiiire  the  same  rights 
and_have1hFsame  remedies,  both  as  to  the  debt  and  the  secur~ 
TfyTv^fiih  the  mort^^agtw,— ni^  tV^.'^ignor.— had  at  the  timc'ol'  the 
Transferror  the  maturity  of  the  debt  had  lie  then  held  it.  It  is 
Che  well  seiiled  laW  that  ITie  wmgagee,  after  the  matiirity  of  the 
debt,  has  three  independent  remedies  open  to  him,  which  he  may 
pursue  successively.  <DlIe  may  reduce  his  debt  to  judgment 
against  the  mortgagor,  or^foreclose  the  mortgage  and  sell  the 
property,  or4)ring  an  action  for  the  recover}'  of  the  possession. 
That  the_assignee  of  the  debt  mav  piirt;ii.>  in  Iijr  aw^  n^^m^  fha 
first  two  remedies,  no  court  questions.  Why,  then,  make  a  dis- 
tinction as  against  the  third  remedy,  and  as  to  that  break  the 
unity  as  to  right  and  remedy?  The  only  an.swer  made  is,  that 
the  mortgage  is  only  equitably  assigned.  The  same  objection,  it 
occurs  to  me,  might  with  the  same  force  be  alleged  against  the 
foreclosure  proceedings  in  the  name  of  the  assignee.  It  Ls  con- 
ceded in  Ramsdell  v.  Tewksbury  (supra),  that  such  equitable 
interest  may  be  enforced  in  a  possessory  action  in  the  name  of 
the  assignor — the  mortgagee — to  the  use  of  the  assignee.  Our 
practice  act  (sec.  3465)  pro\ndes  that,  "every  action  shall  be 
prosecuted  in  the  name  of  the  real  party  in  interest,"  allowing 
to  administrators,  executors,  and  trustees  of  express  trusts,  the 
right  of  action  in  their  names.  I  am  unadvised  as  to  whether 
a  corresponding  pro\ision  exists  in  the  .statutes  of  Maine,  and 
those  states  maintaining  the  doctrine  in  Ramsdell  v.  Tewksbury. 
But  I  understand  that  one  of  the  verj'  objects  in  the  enactment 


174  PARTIES  TO   ACTIONS.  [CHAP.   II. 

of  this  provision  of  the  code  was  to  obviate 'the  useless  form  of 
employing  the  name  of  an  assignor  in  an  action,  who  had  no 
real  interest  in  the  subject-matter  of  litigation,  and  who,  when 
the  judgment  was  obtained  in  his  name,  would  hold  the  same  in 
trust  for  the  benefit  of  the  real  party  in  interest. 

In  City  of  St.  Louis  to  use  v.  Rudolph  (36  Mo.  465),  the 
plaintiff  sued  as  assignee  of  certain  tax  bills  issued  by  the  city 
to  Ursula  Buol.  The  court  said:  "Her  assignment  of  the  bill 
may  be  regarded  as  an  assignment  of  the  cause  of  action,  and  it 
vested  in  him  the  whole  equitable  interest  in  the  demand.  He 
thus  became  the  real  party  in  interest." 

In  Edgell  v.  Tucker  (40  Mo.  531),  the  court  again  seem  to 
recognize  the  principle  that,  where  there  is  an  equitable  assign- 
ment of  the  thing,  the  beneficiary  may  maintain  the  action, 
quoting  from  Tindall,  C.  J.,  in  Crowfort  v.  Gurney  (9  Bing. 
372), — "These  circumstances  amount  to  an  equitable  assign- 
ment of  the  debt  due  from  Gurney  to  Streather,  for  Solly  might 
have  gone  into  a  court  of  equity  to  compel  a  formal  assignment, 
and  no  answer  could  have  been  given  to  such  an  application." 

Certainly,  where  a  court  of  equity  would  compel  the  deposit- 
ary of  the  naked  legal  title  to  assign  the  instrument  to  the  as- 
signee, under  our  code,  he  must  be  the  real  party  in  interest. 
And  it  does  seem  to  me  that  the  spirit  and  object  of  the  stat- 
ute  will  be  best  expressed  and  executed  in  allowing  this_piam- 
tiff  to  proceed  in  his  own  name,  immediately,  to  enforce  his 
possessory  right  imder  the  mortgage,  rather  than  to  compel  him 
either  to  resort  to  the  circumlocution  of  a  bill  in  equit}''  to  com- 
pel an  assignment  of  the  legal  title,  or  to  bring  replevin  in 
the  name  of  the  mortgagee. 

The  cases  to  which  counsel  for  respondents  refer  in  his  brief 
are  mainly  instances  of  deeds  of  trust  on  real  estate  made  to  a 
trustee.  In  such  case  the  legal  title  is  vested  in  the  trustee, 
'i  mutually  selected  by  the  parties  as  such  depositary,  to  hold  in 
■  trust  for  both  parties.  His  is  a  naked  power,  not  transferable, 
and  he  alone  can  maintain  action  for  the  possession.  Pickens  v. 
Jones,  63  Mo.  199;  Siemers  v.  Shraeder,  84  Mo.  20-23;  Meyers 
v.  Hale,  17  Mo.  App.  205. 

It  follows  that  the  judgment  of  the  circuit  court  is  reversed 
and  the  cause  remanded.     All  concur.*  ,, 


\s^  *And  so  in  Bank  v.  Ragsdale,  158  Mo.,  668.  ^ 


^ 


S^€-X  o^     <^ 


Sec.  l.J  BANK  V.   HAYES.  175 

BANK  V.  HAYES. 

112  Cal.  75.     [1896.] 

Belcher,  C.     This  action  was  brought  to  foreclose  a  mort- 
gage executed  by  Edward  Hayes  and  Richard  V.  Hayes  to  se- 
cure payment  of  a  promissory  note  made  by  them  to  the  plain- 
titr.    The  note  was  for  $3,000,  bearing  interest  at  the  rate  of  12 
ptr  cent  per  annum,  compounding  quarterly,  and  was  dated   ^  '^^y,;^,^  .  Uu*^ 
December  20,  1887,  and  payable  March  20,  1888.    The  mortgage  ^,^,^^  eg  -^v>^ 
was  executed  April  3,  1888.     Edward   Hayes  died  testate  oi\y^^   o-*yiJ^^ 
Feb.  4,  1889.    His  will  was  duly  admitted  to  probate,  and  Rich-    ^^^j,-    ^.^AaJ 
ard  V.  Hayes  and  Edward  Dougherty  were  appointed  and  duly  ^^^^  .(^.^usn,^ 
qualified  as  administrators  of  the  estate  with  the  will  annexed.  ^^^^^^  ^.^^^^^^ 
Notice  to  creditors  was  duly  published,  and  within  the  time  lim-    .^  -tJX-^ 
ited  in  the  notice  the  plaintilV  presented  to  the  administrators,    >y^_^^^^_Xv.  c~^ 
for  allowance,  its  claim  ba.sed  on  said  note  and  mortgage;  and    ^_^ v5l>Jo.^^j»- 
the  same  was  allowed  and  approved  by  them  and  by  the  judge 
of  the  court,  and   filed  in  the  court  among  the  acknowledged 
debts  of  the  estate.    The  action  is  based  on  said  claim,  and  was 
eommenced  April  26,  1892.     The  defendants  are  the  two  admin- 
istrators and  the  widow  and  children  of  the  decedent.  The  ad- 
ministratoi-s  and  the  other  defendants  answered  separately.  The 
answer   of   the    administrator   denied   the   non-payment   of   the 
note;  denied  that  the  interests  or  claims  of  defendants  in  the 
premises  de.scribed  were  subsequent  or  subject  to  the  lien  of  the 
I)laintiff's  mortgage;  denied  that  the  claim  of  the  plaintiff  was 
duly  or  properly  presented  to  or  allowed  by  the  administrators 
or  the  judge  of  the  superior  court;  denied  that  the  plaintiff  was 
the  lawful  owner  or  holder  of  said  note  or  mortgage ;  and,  as  a 
further  defense,  set  up  that,  prior  to  the  commencement  of  the 
action,  plaintiff  pledged,  assigned  and  delivered,  said  note  and 
mortgage  to  the  Savings  Bank  of  San  Diego  as  collateral  .se- 
curity for  the  payment  of  an  indebtedness  of  the  plaintiff  to 
said  savings  bank  amounting  to  $3,000,  with  interest  thereon  at 
10  per  cent  per.  annum  from  said  date,  and  that  no  part  of  said 
sum  had  been  paid,  and  the  savings  bank  still  held  the  said  note 
and  mortgage  as  collateral  security  for  the  pa>Tnent  of  said  in- 
debtedness.    The  answer  of  the  other  defendants  set    up    the 
same  defense  as  above,  and,  in  addition  thereto,  that  the  cause 
of  action  was  barred  by  the  provisions  of  sections  337  and  1500 
of  the  code  of  civil  procedure.    The  court  below  found  in  favor 


176  PARTIES  TO  ACTIONS.  [ChAP.   II.' 

of  the  plaintiff,  and  gave  judgment  foreclosing  the  mortgage, 
from  which  the  defendants  have  appealed  on  the  judgment  roll, 
without  any  statement  or  bill  of  exceptions.     *     *     * 

2.     Appellants  contend  that  the  plaintiff  was  not  the  real 
party  in  interest,  and  hence  the  action  could  not  be  prosecuted 
in  its  name.     Section  367,  Code  Civ.  Proc.     The  court  below 
found  that  the  plaintiff  on  the  13th  day  of  March,  1889,  de- 
livered the  said  note  and  mortgage  to  the  Savings  Bank  of  San 
Diego  without  any  indorsement  or  written  transfer  thereof,  to 
secure  the  payment  of  an  indebtedness  of  the  plaintiff'  to  the 
savings  bank  then  existing,  for  the  sum  of  $3,000,  with  interest 
thereon;  that  no  part  of  said  indebtedness  had  been  paid,  and 
the  savings  bank  still  held  the  said  note  and  mortgage  as  se- 
curity for  the  payment  thereof;  that  on    May    15,    1889,    the 
plaintiff,  with  the  consent  of  the  savings  bank,  presented  the 
claim,  based  on  said  note  and  mortgage,  to  the  administrators, 
and  the  same  was  allowed  and  approved  by  them  and  the  pro- 
bate judge,  and  filed  and  registered  in  court  as  alleged  in  the 
complaint;  and  that  on  the  26th  day  of  April,  1892,  this  action 
was  commenced  by  and  in  the  name  of  the  plaintiff,  with  the 
os^yN ,  o^  ^i^Ja  -  consent  of  the  said  savings  bank.    We  do  not  think  the  delivery 
./^iXxSiSL  V.>j»^     of  the  note  and  mortgage,  without  any  indorsement  or  written 
Ltf^^^  tx^A^v!^  transfer,  constituted  such  a  transfer  as  would  deprive  the  plaiuj^ 
•^  ~^/»^^- ,  "v       tiff  of  the  right  to  sue  on  them  in  its  own  name,  with  the  con- 
»^N>.eji  VT;^"^^^^ 'sent  of  the  transferee.    At^ost,  it  was  only  a  pledge,  and,  as 
"■''^  °^^  between  the  pledgor  and  pledgee,  the  legal  title  remained  in  the 

former.  And  the  rule  is  that,  yhen  a  Tjlaintiff  Kolds  the  legal 
titlp  to  the  dpTTiand^  hp  is  the  real  party  in  interest  0  'Connor 
V.  Irvine,  74  Cal.  435  (16  Pac.  236) ;  Grant  v.  Heverin,  77  Cal. 
263   (18  Pac.  647,  and  19  Pac.  493).     *     *     * 


MARTIN  V.  SCOFIELD. 
41  Wis.  167.     [1876.] 

Lex.  ^ij^       Trover  for  200  pine  saw  logs.     Complaint  in  the  usual  form. 

^  <rw  o.-fi-i»x      Answer,  a  general  denial. 

^.^x^^wlv.  V^  't^m:^  j^  appeared  on  the  trial,  that  in  January,  1875,  one  Copper- 
smith cut  the  logs  in  controversy  upon  a  lot  claimed  by  the 
plaintiff,  and  sold  and  delivered  them  to  the  defendants,  and 


^csxSU 


Sec.  1.]  MARTIN  V.  SCOFIELD.  177 

that  the  latter  refused  on  demand  to  deliver  such  logs  to  the 
plaintit?  or  to  pay  for  them,  but  appropriated  the  same  to  their 
own  use.  It  also  appeared  that,  before  the  logs  were  cut,  the 
plaintiff  sold  to  Coppersmith  some  trees  standing  on  the  lot,  and 
authorized  him  to  cut  such  trees  and  remove  them  from  the  lot. 
The  testimony  of  the  plaintiff  is,  that  he  only  sold  five  trees  to 
Coppersmith ;  while  the  latter  testified  that  he  purchased  all  the 
standing  timber  on  the  lot. 

On  the  20th  of  November,  1871,  Mrs.  Emeline  S.  Whitney,  ^  W-.^.  c5U^ 
who  was  then  the  owner  of  such  lot,  executed  to  the  plaintiff  a  O'vyJ-^^^  ^ 
contract  to  convey  to  him  the  lot  from  which  the  logs  in  con-  '^  ,^^^"*^^^ 
troversy  were  taken,  upon  his  paying  her  $200,  with  interest  '^^j^^^^^  1 
thereon,  in  one  year  from  that  time,  in  addition  to  $57.04  paid  ^  ^^^^^^  ^^j^ 
at  the  time  the  contract  was  executed.  There  is  indorsed  upon  ^  .^^ev^ik,  <»^ 
the  instrument  a  receipt  for  the  interest  to  Feb.  1,  1875.  t^^JL.  i^jvaj^^ 
Further  reference  to  this  contract  will  be  found  in  the  opinion.  i?J^^<^^  ; 
The  lot  was  uncultivated  and  unoccupied  when  the  plaintiff 
sold  the  trees  to  Coppersmith. 

The  rulings  of  the  court  on  the  trial  are  sufficiently  stated  in 
the  opinion. 

The  jury  found  for  the  defendants;  a  new  trial  was  denied; 
and  judgment  for  costs  was  rendered  against  the  plaintiff;  from 
which  he  appealed. 

Lyon,  J.  The  controlling  question  in  the  case  is,  Did  the 
plaintiff  have  such  an  interest  in  the  logs  in  controversy  that  he 
can  maintain  trover  therefor?  To  determine  this  question,  it  is 
necessary  to  consider  the  nature  of  his  interest  in  the  land  from 
which  the  logs  were  taken.  It  has  often  been  held  that  the  rela- 
tion between  the  parties  to  a  contract  for  the  conveyance  of 
land  is  analogous  to  that  of  equitable  mortgagor  and  mortgagee 
in  fee  ofthe  land  affected  by  the  contract.  And  such  is  the  re- 
latiolQ  the  plaintiff  and  Mrs.  Whitney  ^ustain  to  each  othen  in 
respect  to  the  land  in  question. 

The  contract  of  Mrs.  Whitney  does  not,  in  terms,  give  the 
plaintiff  the  right  to  the  possession  of  the  land;  but  it  does  so 
by  necessary  implication.  It  provides  for  reentry  in  case  the 
plaintiff  makes  defaults  in  his  payments ;  also  for  a  right  of  dis- 
tress upon  the  premises  for  arrears  of  interest ;  and  contains  the 
other  clauses  usual  in  such  contracts,  that,  on  default,  the  plain- 
tiff may  be  regarded  as  a  tenant  holding  over  without  permis- 
12 


178  PARTIES   TO   ACTIONS.  [CllAP.   II. 

sion  of  his  landlord,  and  for  the  recovery  of  damages  fur  waste. 
These  clauses  in  the  contract  manifest  unmistakably  that  ^Irs. 
Whitnej^intended  by  it  to  vest  in  the  plaintiff  the  right  to  the 
j)ossession_oOlLe_  land. 

Having  such  right  of  possession,  he  authorized  Coppersmith 
to  go  upon  the  land  and  cut  timber,  and  the  latter  did  so.  The 
act  of  Coppersmith  under  such  license  was  the  act  of  the  plain- 
tiff, whereby,  in  contemplation  of  law,  the  plaintiff'  entered  into 
the  actual  possession  of  the  land.  Besides,  the  case  is  not  barren 
of  proof  of  other  possessory  acts  on  the  part  of  the  plaintiff". 
By  his  direction,  his  brother  and  agent  went  upon  the  land  when 
Coppersmith  was  cutting  the  timber  in  controversy,  and  exer- 
cised acts  of  ownership  thereon  for  the  plaintiff.  The  plaintiff 
cannot  reasonably  be  required  to  do  more  in  order  to  take  actual 
possession.  We  have  no  difficulty,  therefore,  in  holding  that 
when  the  logs  were  cut  by  Coppersmith,  the  equitable  estate  in 
the  land  upon  which  they  were  cut,  and  the  possession  and  right 
to  the  possession  of  the  land,  were  in  the  plaintiff.  It  follows, 
on  the  authority  of  Northrup  v.  Trask,  39  Wis.  515,  that  the 
plaintiff  wasthe  owner  of  the  land,  and  of  course  of  any  tim- 
ber cut  upon  it,  subject  only  to  the  right  of  Mrs.  Whitney  as 
mortgagee,  and  that  he  alone  could  maintain  trover  or  replevin 
for  timber  and  logs  taken  therefrom  without  his  consent.  The 
^^  j»jj^A..^wt^  case  last  cited  is  express  authority  that  Mrs.  Whitney  cannot 
,;^^,^ .  y^>-A^  ^<w»  maintain  an  action  against  the  defendants  to  recover  the  logs 
■>*^*^^*^^"'  in  controversy. 

^'''^^"''V*"'^^'^ >  The  learned  county  judge  instructed  the  jury  (among  other 
-  ^•';>-»-^"<?*' -  things)  as  follows:  "If  the  jury  find  from  the  evidence,  that 
^*'^*"*'*^7W\jLojfc the  plaintiff  authorized  Coppersmith  to  go  on  the  land  in  ques- 
9-  ^^Lr'0^^<>^  ^^^^  ^^^  ^^^  timber  on  it,  then  your  verdict  must  be  for  the  de- 
o.«5>j«w.  fsndants,  although  it  might  appear  that  Coppersmith  cut  more 
timber  than  he  was  authorized  by  the  plaintiff  to  cut."  This 
was  equivalent  to  a  direction  to  the  jury  to  find  for  the  defend- 
ants. It  is  manifest,  from  the  above  views,  that  the  plaintiff 
may  maintain  this  action  for  the  logs  cut  by  Coppersmith  (if 
i  any)  in  excess  of  his  license,  and  sold  by  him  to  the  defendants; 
and  the  instruction  above  quoted  is  clearly  erroneous. 

Various  other  exceptions  were  taken  to  the  rulings  of  the 
court  on  the  trial;  but  it  is  deemed  unnecessary  to  consider 
them.    What  has  already  been  said  will  sufficiently  indicate  to 


Sec.  1.]  M.vRTiN  V.  scofield.  179 

the  county  court  what  its  rulings  should  be  when  the  cause  is 
again  tried. 

By  the  court. — Judgment  reversed  and  cause  remanded  for  a 
new  trial.  (^    ^^.o...^  . 


HOFFMAN  V.  CITY  OF  COLUMBIA. 
7(j  Mo.  App.  553.     [1898.] 

Smith,  P.  J.     This  is  an  action  by  the  plaintiff  against  de- 
fendant, a  city  of  the  third  class,  to  recover  damages  occasioned 
by  the  action  of  the  latter  in  changing  the  grade  of  certain  ^\j,^j,^  ^u^bs 
designated  streets  in  front  of  the  property  of  the  former,    in  o-<yv>*-«LU»  '^ 
pursuance  of  an  ordinance  passed  for  that  purpose.    At  the  time  cK*-.^-^-*:^-^  ^ 
of  the  pas.sage  of  the  ordinance  Mi's.  Riggins  was  the  owner  in    ^^^  ^ 

fee  of  the  property  and  between  that  time  and  the  change  of  the  ''^^vLiuilL-tVj 
grade  of  said  streets,  she  entered  into  a  written  contract  with  -^^^^j^^.^^  ^^^.^j^ 
the  plaintiff  for  the  sale  of  the  property  and  the  execution  of  a        'S      "^ 
deed  therefor.     The  d^^ed  was  not  executed  until  a  few  days 
after  the  completion  of  the  street  improvement.     The  evidence 
abundantly  shows  that  the  property  was  greatly  damaged  by  the 
grading  of  the  streets.    There  was  a  trial  resulting  in  judgment 
for  the  plaintiff  and  the  defendant  appealed. 

The  defendant  contends  that  inasmuch  as  the  plaintiff  was 
a  mere  vendee  under  an  executory  contract  of  sale  that  he  was 
not  such  an  owner  of  the  property  as  entitled  him  to  recover 
damages  for  injuries  done  thereto,  prior  to  the  time  of  the  de- 
livery of  the  deed  to  him.  Our  Practice  Act — Revised  Statutes 
1889,  section  1990, — requires  that  every  action  shall  be  prose- 
cuted in  the  name  of  the  real  party  in  interest.  The  question 
here  is,  who  was  the  real  party  in  interest  at  the  time  of  the  in- 
jury to  the  property? 

Snyder  v.  Murdock,  51  Mo.  175,  was  where  defendant  had 
given  his  notes  for  real  property  and  the  plaintiff  had  given 
bond  for  title.  The  carding  machine  and  mill  situate  on  the 
property  were  destroyed  by  fire  before  the  payment  of  the  notes 
or  the  making  of  the  deed.  In  a  suit  on  the  notes  the  defendant 
pleaded  as  a  defense  that  the  carding  machine  and  mill  gave  the 
property  great  value  and  were  the  main  inducement  to  the  pur- 
chase, etc.     In  the  course  of  the  opinion  in  the  case,  it  is  said 


180 


P^VKTIES   TO   ACTIONS.  [CUAP.   II. 


that:  "After  an  executory  coutract  for  a  conveyance  of  real 
estate  has  been  entered  into  by  the  execution  of  a  bond  for  title 
and  notes  for  the  purchase  money,  the  property  is  at  the  risk  of 
the  purchaser.  If  it  burns  up,  it  is  his  loss ;  if  it  increases  in 
value,  it  is  his  gain.  This  is  the  settled  equity  doctrine,  and  is 
based  upon  the  principle  that  in  equity  what  is  agreed  to  be 
done  must  be  considered  as  done." 

In  Walker  v.  Owen,  79  Mo.  loc.  cit.  569,  the  defendant,  under 
a  title  bond,  took  possession  of  the  premises.  There  was  on  the 
lot  a  store  house  of  which  the  defendant  took  possession,  under 
his  contract,  and  used  the  same  for  several  montlis  and  was  so 
using  it  when  it  burned  down.  It  is  said  by  the  court,  in  de- 
ciding the  case,  "that  when  a  vendee  thus  takes  possession  of 
real  estate,  under  a  title  bond,  from  the  vendor,  and  the  im- 
provements thereon  are  destroyed,  the  loss  falls  on  the  vendee." 
Snyder  v.  Murdock,  51  Mo.  175.  The  defendant  is  not  in  a  po- 
sition to  rescind  the  sale  if  he  desired,  for  he  cannot  put  the 
vendor  in  statu  quo  by  restoring  to  him  the  property  he  ob- 
tained from  him.  See,  also,  Deland  v.  Vanstone,  26  ^lo.  App. 
297 ;  Woods  v.  Straup,  63  Mo.  433 ;  Tatum  v.  Brooker,  51  Mo. 
148. 

It  has  been  twice  held  by  the  supreme  court  of  Michigan 
that  where  persons  holding  lands  under  a  contract  for  sale 
which  does  not  give  them  any  possessory  right  therein  before 
completion  of  payment  therefor,  can  not,  before  such  payment, 
maintain  an  action  for  damages  done  to  such  land,  since  they 
are  not  the  owners  of  the  freehold.  Moyer  v.  Scott,  30  Mich., 
345 ;  Des  Jardins  v.  Boom  Co.,  54  N.  W.  Rep.,  718.  It  does  not 
appear,  from  the  meager  statement  made  in  Snyder  v.  Murdock, 
supra,  whether  or  not  the  vendee  was  put  in  the  actual  pos- 
session of  the  property,  but  it  may  be  fairly  inferred  that  such 
was  the  fact.  That  is  the  way  it  is  to  be  undei-stood.  Walker 
V.  Owen,  supra. 
^(jut^d^y^  It  appears  from  the  contract  of  sale  that  Mrs-  Riggins  should 
v^x  *r^  yj«3-ajL<^*- reserve  in  her  deeds  the  rents^,  issues  and  profits  of  said  prop- 
,  V>-Ajt  ^  p;:^,-.,^^^  gj^y  ^^p  ^Q  July  1,  1897 — more  than  six  months  after  the  date 
-"-y^  -^li.Vji  ^£  ^Yi^Q  injury — and  that  the  plaintiff  should  not  disturb  the 
^"^"^T**^,^!^  tenant  in  possession  until  the  last-named  date.  It  is  thus  seen 
\-.aLo-.^  o^.  that  the  plaintiff,  at  the  time  of  the  spoliation  of  the  property, 
j^,.^^      ^  of  which  he  complains,  was  not  then  in  either  the  actual  or  con- 

structive possession.     Though  the  plaintiff  had  only  a  contract 


Sec.  l.j  uoFFiiA>;  v.  city  of  Columbia.  181 

for  the^  conveyance  to  him  of  the  title  to  the  property,  yet  the  ^  Wa.s,>^  - 
action  could  have  been  maintained  by  him  if  he  had  been  placed 
m  the  actual  possessionthereof  by  his  vendor.  There  is  nothing 
m  the  contract  which  had  the  effect  to  make  the  subsequent 
deed  operate  by  relation  back  to  the  date  of  the  contract.  The 
plaintiff',  by  the  terms  of  the  former,  was  not  entitled  to  the  lat- 
ter, until  he  made  the  payment  of  a  certain  amount  of  the  pur- 
chase money  and  secured  the  remainder  thereof  in  either  one  of 
the  two  ways  stipulated.  And  as  the  land  was  not  paid  for,  V>^o^<--^''^ -'^ 
and  the  plaintiff'  could  not  have  possession  until  after  payment  ^™"  ^  C^ 
of  part  of  the  purchase  money,  the    giving    of   the    stipulated  vwvat^ix^ 

securities  for  the  deferred  payments,  it  is  plain  that  the  vendor  ^"^ 

had  a  valuable  interest  therein  and  not  a  mere  naked  title,  and 
that  an  injury  to  the  land  was  an  in,^ury  to  her.  We,  there- 
fore, conclude  that  the  plaintiff'  was  not  the  real  party  in  inter- 
est, in  the  statutory  sense,  and  the  action  was  improperly  prose- 
cuted in  his  name.  It  results  that  the  demurrer  to  the  evidence, 
interposed  by  the  defendant,  should  have  been  sustained. 

As  the  ruling  just  made  is  decisive  of  the  case  on  the  merits, 
it  becomes  \vh(jlly  unnecessary  to  notice  the  question  of  the  suf- 
ficiency of  the  defence  pleaded  by  the  answer  and  stricken  out 
by  the  trial  court  on  the  motion  of  the  plaintiff. 

Judgment   reversed.     All   concur.*  , 


CASSIDY  V    FIRST  NATIONAL  BANK. 

30  Minn..  8(J.     [1882.] 

Berry,  J. :     The  defendant  issued  the  following  instrument, 

signed  by  its  president: 

"First   National   Bank, 

"Faribault,  Minnesota,  June  1,  1880. 
* '  Jeriy  Cassidy,  Esq.,  has  deposited  in  this  bank  $1,050,  pay- 
able to  himself  or  order,  in  current  funds,  on  the  return  of 
this  certificate  properly  indorsed." 

The  monej'  deposited  was  the  property  of  plaintiff,  by  whom 
it  was  handed  to  Jerry  Cassidy,  her  husband,  to  be  deposited 
in  the  defendant  bank  in  his  or  her  name  as  he  saw  fit.  Imme- 
diately upon  receiving  the  certificate  he  delivered  it  to  plaintiff, 

*See  also  Olson  v.  Brooks  Lumber  Co.,  89  Minn.,  280. 


182  PARTIES   TO   ACTIONS.  [ChAP.   1 1. 

who  ever  since  he  has  had  its  exclusive  possession  and  control, 
and  has  been  the  real  owner  of  the  debt  evidenced  by  it.  Before 
the  commencement  of  this  action  she  presented  the  certificate  to 
defendant  and  demanded  payment  of  the  balance  due  thereon, 
at  the  same  time  informing  defendant  that  she  was  its  lawful 
owner  and  holder,  and  offering  to  surrender  it  upon  payment. 
Defendant  refused  payment  upon  the  ground  that  the  cer- 
tificate had  not  been  indorsed,  and  was  claimed  by  Jerry  Cas- 
sidy  as  his  own.    In  fact,  it  has  not  been  indorsed. 

The  certificate  is  in  effect  a  negotiable  promissory  note.   Par- 
dee V.  Fish,  60  N.  Y.,  265 ;  Klauber  v.  Biggerstaff,  47  Wis.,  551 
(S.  C.  3  N.  W.  Rep.,  357).    The  fact  that  the  sum  named  in  it 
is  payable  "on  the  return"  of  the  certificate  does  not  raise  a 
contingency  affecting  its  character  as  such  note.     In  the  ab- 
sence of  these  words,  the  duty  to  return  upon  payment  would  be 
implied,  as  in  case  of  a  negotiable  promissory  note  in  common 
V    .      -  form.     Notwithstanding  it  is  made  payable  to  the  depositor  or 
.Ve^,  .^,  ^      his  order,   a  third  person  may  become  its  owner  without  in- 
,.^  v^  ■t>^       dorsement.     This  is,  in  effect,  determined  in  Pease  v.  Rush,  2 
"^^-  ^"^^^^    Minn.,  107  (Gil.  89).    In  that  case  the  title  of  a  note  made  pay- 
Jx^II^^^a^  able  "to  the  order"  of  certain  persons  named  was  held  to  pass 
SL  v5^^->^-  by  delivery  without  the  indorsement  of  the  persons  to  whos(? 
:  ti>   ^--^^-^^^       order  it  was  payable.    That  case  also  determined  that  the  party 
j3jol^.  acquiring  title  by  such  delivery  without  indorsements  was  the 

real  party  in  interest,  who  was,  therefore,  under  our  practice, 
entitled  to  maintain  an  action  upon  the  note  in  his  own  name. 
See  also  Foster  v.  Berkey,  8  Minn.,  351  (Gil.  310)  ;  White  v. 
Phelps,  14  Minn.,  27. 

It  is  impossible  to  distinguish  the  case  at  bar  in  principle 
from  the  cases  cited.  Here  the  sum  named  in  the  certificate  is 
payable  to  Jerry  Cassidy  or  his  order  upon  the  return  of  the 
certificate  properly  indorsed.  In  the  case  cited  from  3  Minn.,  the 
sum  named  in  the  note  was  payable  "to  the  order"  of  the  per- 
sons named  therein ;  that  is,  in  legal  significance,  to  those  to  whom 
they  should  order  it  to  be  paid  by  their  indorsement,  and  upon 
the  return  or  delivery  up  of  the  note.  There  is  no  substantial 
difference  between  the  two  cases.  In  either,  title  may  be  ac- 
quired by  delivery^nd  thereupon  the  owner  and  holder,  as  the 
real  party  in  interest,  may  maintain  an  action  for  the  contents 
of  the  instrument  in  his  own  name.  If  in  the  one  case  the  note, 
or  in  the  other  (as  here)  the  certificate,  is  claimed  -by  some 
person  other  than  the  plaintiff,  the  maker  of  the  note  or  the  cer- 


Sec.  l.J  CASSiDY  v.  first  national  bank.  183 

tificate  may  protect  himself  by  bringing  the  money  into  court 
and  compelling  an  interpleader  under  section  131,  c.  66,  Gen. 
St.  1878.  Judgment  for  the  plaintiff  was  properly  ordered 
and  entered  below,  and  is  accordingly  affirmed.* 

V^ 


HARTFORD  &  SALISBURY  ORE   CO.   v.   MILLER. 
41  Conn.,  JIJ.      [1874.]  \ 

Action  by  the  plaintiff  corporation  for  thi'  breach  of  the  cov- 
enants of  seisin  and  against  incumbrances  in  a  deed  from  the 
defendant  to  one  Bristol. 

On  the  12th  day  of  June,  1868,  the  defendant  executed  and 
delivered  to  Louis  H.  Bristol,  as  trustee,  a  deed,  of  which  the 
following  is  the  material  part: 

"Know  ye  that  I,  Monroe  Miller,  of  the  town  of  Salisbury, 
(/onnectieut,  for  the  consideration  of  twenty-five  thousand  dol- 
lars, received  to  my  full  satisfaction  of  Louis  II.  Bristol,  of 
the  city  and  county  of  New  Haven,  as  trustee  of  and  for  the 
sole  use  and  benefit  of  the  Hartford  and  Salisbury  Ore  Bed 
Company,  hereafter  to  be  organized  under  the  joint-stock  laws 
of  this  state,  do  give,  grant,  bargain,  sell  and  confirm  unto  the 
said  Louis  H.  Bristol  as  trustee  aforesaid,  that  certain  tract  of 
land  situate  in  said  Salisbury,  in  the  village  of  Lakeville. 
bounded  and  described  as  follows  (describing  it),  containing 
about  one  hundred  and  fifty  acres;  excepting,  and  reserving  to 
myself,  my  heirs  and  assigns,  the  two-acre  lot  lying  directly 
in  rear  of  the  new  academy,  with  a  convenient  right  of  way 
to  and  from  the  highway  aforesaid.  And  I,  the  said  Miller,  do 
sell  and  convey  the  undivided  one-seventh  part  of  all  the  iron 
ore  and  other  minerals  in  and  upon  said  jjreniiscs  which  I  own 
in  common  with  tht*  heirs  and  devisees  of  John  M.  HoUey,  de- 
ceased. But  it  is  understood  that  the  said  Ilolley  heirs  own  the 
six-sevenths  of  said  ore  and  minerals." 


♦See  also  McDowell  v.  Bartlett,  14  la.,  157  (where  a  note  was  trans- 
ferred to  the  plaintiff  as  "equitable  owner"  after  the  death  of  the 
legal  holder). 

Seattle  National  Bank  v.  Emmons,  16  Wash.,  .585  (where  a  renewal 
note  was  made  payable  to  the  assignor  of  the  original  note). 

f  Statement  has  been  condensed. 


184  PARTIES   TO   ACTIONS.  [ChAP.    II. 

Subsequently  the  plaintiffs  received  a  charter  and  were  in- 
corporated by  the  General  Assembly  of  this  State,  and  there- 
upon afterwards  Bristol,  as  trustee,  on  the  26th  day  of  Aufjust, 
1868,  released  to  the  corporation  all  his  interest  as  trustee  under 
the  conveyance  last  above  described.     *     *     * 

Carpenter,  J.:  The  first  question  presented  by  this  record 
is  a  very  simple  one.  Who  is  entitled  to  sue  for  a  breach  of 
the  covenants  of  seizin  and  against  incumbrances  contained 
in  the  deed  from  the  defendant  to  Louis  H.  Bristol  ?  It  is  con- 
ceded that  these  covenants  do  not  run  with  the  land ;  that  they 
-'^^*^  were  broken,  and  that  a  right  of  action  accrued  the  instant  the 


C^,-,^AA 

„^,ruMi>v^.^,^  deed  was  delivered,    To  whom  did  it  accrue?    Not  to  the  plain- 

=^  V*-'^^^  tiffs  certainly,  for  at  that  time  the  corporation  was  not  in  ex- 

W-3  Va.x^v-  ig^g^cg     The  deed  was  to,  and  the  covenants  therein  were  with, 

r^'^'^^C" "  ^v  Louis  H.  Bristol.     The  legal  title,  not  only  to  the  land,  but  to 

<JkAo-  V»/v.-»V*^ -.    .      ■ — ;; 'r. T". 7~. 

^^.j.^^  ^,..x^  the  rights  of  actionarising  from_the_conveyance,  vested  in  him 

t<J-^XAr  vvo.   and  in  limi  aloneT    That  he  was  a  mere  trustee  matters  not ; 

■J^..oA^^  ax^s^u  j^  Qj^jy  shows  that  the  right  of  action  was  in  his  name  as  trustee, 

L_a-v^>X.^^    and  that  the  amount  collected  would  be  a  fund  in  his  hands 

-   f^     for  the  cestui  que  trust. 

*  The  objection  that  the  defendant  might  resist  a  suit  brought 

in  the  name  of  the  trustee  on  the  ground  that  he  personally 

paid  no  part  of  the  consideration  is  more  imaginary  than  real. 

The  consideration  was  in  fact  paid  to  the  defendant,  and  he 

acknowledged  in  his  deed  that  he  received  it  of  Bristol.     The 

fact  that  other  parties  furnished  the  money  is  immaterial.     In 

contemplation  of  law,  therefore,  for  the  purposes  of  an  action 

on  these  covenants,  the  consideration  was  paid  by  Bristol. 

The  statute  (Gen.  Statutes,  tit.  1,  sec.  64),  authorizing  the 
assignee  and  equitable  owner  of  a  chose  in  action,  not  nego- 
tiable, to  bring  an  action  thereon  in  his  own  name,  does  not  aid 
the  plaintiffs.  The  plaintiffs  are  the  parties  beneficially  inter- 
ested in  the  right  of  action,  but  they  are  not  assignees  of  a  chose 
in  action.  Mr.  Bristol  conveyed  the  land  by  a  quitclaim  deed 
in  the  ordinary  form,  but  he  did  not  assign  or  attempt  to  as- 
sign a  chose  in  action.  Had  he  done  so,  and  had  the  plaintiffs 
in  their  declaration  alleged  that  they  were  the  actual  and  bona 
fide  owners  of  the  chose  in  action  mentioned  therein,  and  set 
forth  when  and  how  they  acquired  title  thereto,  as  required  by 
the  statute,  their  claim  in  this  respect  might  have  been  sus- 
tained.   As  it  is,  we  think  it  cannot  be.     *     *     * 


V"  ^^- 


Sec.  1. 


STOLL  V.  SHELDON. 


185 


STOLL  V.  SHELDON. 

13  Neb.,  207.    [1882.] 

By  the  Court :  This  case  was  before  this  court  in  1881,  and 
is  reported  in  11  Neb.,  272,  the  facts  being  stated  and  a  copy  of 
the  note  sued  on  being  given  in  that  case.  StoU  signed  the  note'T'"^  *^^^ 
in  controversy  as  surety,  and  now  relies  upon  two  defenses:  .  "-'y^-^J 
First,  that  the  action  is  not  brought  in  the  name  of  the  real  \^ 3uaj^.>so>^^ 
party  in  interest;  second,  settlement  with  one  Hutchinson,  an 
attorney  of  the  plaintiff.  The  note  was  made  payable  to  "S.  L. 
Sheldon,  or  order."  The  testimony  shows  that  Sheldon,  at  the 
time  the  note  was  given,  and  now  is,  the  agent  of  the  Meadow 
King  Mower  for  Gregg  &  Co.,  who  are  the  real  owners  of  the 
note.  (£he  code  requires  the  action  to  be  brought  in  the  name 
of  the  real  party  in  interest,  but  excepts  trustees  of  express 
trusts,  executors,  and  administrators,  and  persons  in  who.se 
names  contracts  are  made  for  the  benefit  of  others!)  Judge  Bliss 
has  referred  to  the  ca.ses  bearing  upon  this  quesnon.  See  sec- 
tion 57,  Code  Pleadings;  and  Pomeroy,  more  fully,  in  Remedies 
and  Remedial  Rights,  §§  171-182.  The  law  seems  to  be  definite- 
ly settled,  by  the  decisions  referred  to,  that  when  a  contract  is 
entered  into  with  an  agent  in  his  own  name,  the  promise  being 


made  directly  to  him,  he  may  maintain  an  action  on  such  con- 
tract in  his  own  name  without  joining  the  person  beneficially 
interested,  but  the  defendant  would  not  thereby  be  deprived 
of  any  defense  he  might  have  to  the  action.  The  first  objec- 
tion of  the  plaintiff,  therefore,  is  not  well  taken.     •     *     • 

Judgment  affirmed. 


THOMPSON  V.   FARGO. 
49  N.  Y.,  188.     [1872.] 

Appeal  from  judgment  of  the  general  term  of  the  supreme  /-v    »j 
court   in   the   first   judicial   department,   affirming  a   judgment 
in  favor  of  plaintiff  entered  upon  the  report  of  a  referee.     (Re- 
ported below,  58  Barb.,  575;  44  How.  Pr.  R.,  176.) 

This  action  was  brought  to  recover  damages  for  an  alleged 
failure  of  defendant  to  deliver  a  package  of  United  States 
treasury  notes  received  by  it  for  transportation. 


186  PARTIES  TO  ACTIONS.  [CilAI'.   II. 

Facts  found  by  the  referee:  That  the  defendant,  the  Amer- 
ican Express  Company,  is  a  joint  stock  company,  consisting' 
of  more  than  seven  members,  and  is  engaged  in  the  express 
business  as  common  carriers,  whose  principal  office  is  in  the 
city  of  New  York. 

On  or  about  the  11th  day  of  August,  1865,  the  American  Ex- 
press Company  received  from  the  United  States  Express  Com- 
pany, at  Decatur,  in  the  state  of  Indiana,  a  package,  contain- 
ing United  States  compound  interest  notes,  and  7.30  Treasury 
notes,  to  the  amount  of  $660.63,  together  with  papers  discharg- 
ing John  and  William  White  from  service  in  the  army  of  the 
United  States. 

That  said  package  was  addressed  as  follows:  "By  the  United 
States  Express  Company,  $660.63,  John  and  William  White, 
care  Captain  James  K.  Martin,  Bunton  House,  Terre  Haute, 
Indiana. ' ' 

The  package  was  delivered  to  the  United  States  Express  Com- 
pany by  plaintiff  at  Springfield,  111.,  and  receipt  taken. 

The  American  Express  Company  conveyed  it  to  the  place  of 
destination  without  delay.  Diligent  search  and  inquiry  were 
made  for  the  consignees,  but  they  could  not  be  found  or  heard 
from. 

The  contents  of  the  package  was  the  back  pay  of  the  said 
John  and  William  White,  as  soldiers  in  the  army  of  the  United 
States,  and  their  discharge  papers  from  the  service,  and  a  letter 
from  the  plaintiff. 

The  Whites  had  employed  the  plaintiff  as  their  agent  to  col- 
lect for  them  the  back  pay  in  question  from  the  United  States 
government. 

The  enclosure  in  the  package  was  the  proceeds  of  a  cheek  re- 
ceived by  plaintiff,  from  the  government  agent  at  Springfield, 
Illinois,  for  such  back  pay. 

The  plaintiff  demanded  the  package  in  question  from  James 
C.  Fargo,  the  treasurer  of  the  defendant,  at  the  city  of  New 
York,  who  refused  to  deliver  the  same  to  him. 

Peckham,  J.:     To  sustain  an  action  against  a  common  car- 
rierjor  failing  to  deliver  goods,  the  plaintiff  must  be  theownerj 
or  have  some  special  interest  in  them.      (Krulder  v.   Ellison." 
47  N.  Y.,  36;  Green  v.  Clarke,  12  N.  Y.,  343.)     Prima  facie  the 
consignee  is  the  owner. 

If  this  had  been  a  sale  of  goods  by  the  consignor,  ordered  by 


Sec.  1.] 


THOMPSON   V.    FARGO. 


187 


the  consigmee,  M'ithout  stating  in  what  way  or  manner  to  send 
them,  but  only  where,  the  consignor  would  have  had  sufficient 
title  to  maintain  the  action,  because  the  title  in  such  case,  as  a 
general  rule,  would  not  pass  by  the  mere  delivery  to  the  car- 
rier. In  this  case,  however,  the  plaintiff  never  owned  the  money 
ordered  to  be  sent  to  the  consignee,  and  had  no  special  interest 
in  it.  He  was  a  mere  agent  Hence  if  he  simply  fulfilled  the 
orders  of  the  owners  and  sent  the  money  to  the  consignee  by  a 
suitable  and  proper  conveyance,  his  duties  and  liabilities  were 
discharged  He  then  had  no  further  right  or  interest  in  the 
matter. 

The  action  was  brought  and  tried  upon  'the  assumption  that 
the  plaintiff  properly  collected  and  sent  the  money  due  from 
the  government  to  the  Whites.  There  was  no  allegation  or  sug- 
gestion that  he  had  not  sent  the  money  he  received  by  the  usual 
and  proper  mode,  that  he  had  not  fulfilled  the  directions  of  the 
Whites,  that  he  was  not  authorized  by  them  to  do  precisely 
what  he  did — the  referee  has  substantially  so  found  as  a  matter 
of  fact,  and  there  is  no  exception  to  any  of  his  findings  of 
fact.  It  is  too  late  here  for  the  plaintiff  to  attempt  to  vary 
these  findings  of  fact  to  su.stain  his  judgment. 

It  is  the  right  and  interest  of  the  defendant  to  see  that  the 
package  is  delivered  to  none  but  the  true  owner.  A  wrongful 
recovery  against  this  defendant  will  afford  it  no  defense  as 
against  the  true  owners  or  their  representatives. 

This  is  not  a  case  of  a  fictitious  consignee.  The  Whites  were 
alive  and  in  the  civil  war.  This  was  their  pay,  and  if  they  have 
died  since  this  proceeding,  that  gives  no  right  to  this  plaintiff  to 
sue  upon  these  facts.  It  follows  that  the  referee  erred  in  finding 
for  the  plaintiff",  and  the  judgment  of  the  general  term  affirming 
that  judgment  must  be  set  aside  and  a  new  trial  granted,  co-sts 
to  abide  event. 

All  concur,  except  Allen,  J.,  not  sitting,  and  Rapallo,  J.,  not 
voting. 

Judgment  reversed. 


<"\     cjjr>/\.*-*>^ 


V-  ^ 


188  PARTIES  TO   ACTIONS.  [OUAP.   II. 

WATERMAN  v.  C,  M.  &  ST.  PAUL  RAILROAD  CO. 
61  Wis.  46 i.      [1884.] 

On  or  about  February  2,  1880,  in  consideration  of  $90  then 
paid,  the  defendant,  at  Darien,  Wisconsin,  agreed  with  the  plain- 
tiff in  writing  to  transfer  one  carload  of  goods  consisting  of 
household  goods,  farming  implements,  one  pair  of  horses,  and 
some  lumber,  described  therein  as  the  property  of  the  plaintiff, 
from  said  Darien  to  Plum  Creek,  in  the  state  of  Nebraska.  The 
writing  recited  that  the  property  was  received  of  the  plaintiff  at 
the  former  place  and  consigned  to  him  at  the  latter  place.  As 
a  part  of  the  contract  the  plaintiff  therein  released  the  defend- 
ant from  certain  liabilities,  and  was  to  and  did  accompany  the 
property;  and  for  that  purpose  was  to  and  did  receive  a  free 
pass  from  the  defendant.  When  the  car  reached  Plum  Creek, 
the  railroad  company  having  the  same  in  charge  refused  to  de- 
liver the  property  to  the  plaintiff  unless  he  would  pay  an  extra 
charge  of  $32.28  over  and  above  that  already  paid,  as  expressed 
in  the  contract,  as  freight,  and  in  compliance  with  that  exaction 
the  same  was  then  and  there  paid,  and  the  property  delivered  to 
the  plaintiff,  and  this  action  is  to  recover  back  the  amount  of 
such  excessive  charge  so  exacted  and  paid.  It  appears  as  a  mat- 
ter of  fact,  that  the  property  belonged  to  Charles  Nowlan ;  that 
the  negotiations  for  the  carriage  were  conducted  by  his  brother, 
0.  F.  Nowlan;  that  the  agreed  freight  ($90)  was  paid  by  Chees- 
bro,  the  father-in-law  of  Charles  Nowlan ;  that  at  the  time  of  the 
loading  of  the  car  Cheesbro  started  to  sign  the  contract  in  be- 
half of  Charles  Nowlan,  when  the  defendant  stopped  him,  and 
insisted  that  as  the  plaintiff  was  to  accompany  the  goods  and 
receive  them  at  Plum  Creek,  he  should  execute  the  contract, 
which  he  accordingly  did,  and  that  recited  that  $90  was  received 
of  Cheesbro  for  the  plaintiff.  It  further  appears  that  the 
amount  of  the  extra  charge  exacted  at  Plum  Creek  was,  in  fact, 
furnished  and  paid  by  Charles  Nowlan  in  the  presence  and  with 
the  consent  of  the  plaintiff.  The  answer  consists  of  a  general 
denial  merely.  Upon  the  trial  the  jui-y  found  for  the  plaintiff, 
and  assessed  his  damages  at  the  amount  of  such  excessive  charges 
and  interest,  and  from  the  judgment  entered  thereon  this  appeal 
is  brought. 

Cassoday,  J.  Notwithstanding  the  plaintiff  is  described  in 
the  contract  of  carriage  as  consignor,  consignee,  and  sole  owner, 


Sec.  1.]  WATERMAN  V.   C,  M.   &  ST.  P.   R.  R,  CO.  189 

yet  the  defendant  seeks  to  escape  liability  for  the  repayment  of 
the  excessive  exaction  on  the  sole  ground  that  the  plaintiff  was 
not  the  owner  of  the  property,  and  did  not  personally  furnish 
and  pay  the  overcharge.     Is  such  a  defense    available?     The 
question  has  elicited  much  discussion,  and  the  adjudicated  cases 
upon  it  present  a  considerable  disagreement.    We  make  no  at- 
tempt to  reconcile  an  irreconcilable  conflict.     It  is    enough   to 
know  that  our  conviction  as  to  the  law  applicable  has  the  sanc- 
tion of  respectable  authority,  and  especially  under  our  statute  as 
it  has  been  construed  by  this  court.    The  question  is  not  whether 
the  uwner  could  have  maintained  the  action,  for  he  did  not  bring 
the  action.     There  seems  to  be  no  dispute  that,  where  there  is 
nothing  appearing  to  the  contrary,  the  consignee  is  presumed  to 
be  the  owner  of  the  {)roperty,  and  as  such  may  maintain  an 
action  for  its  loss  or  depreciation  in  value  by  rea.son  of  the  neg- 
ligence  of  the  carrier.     Undoubtedly  this  presumption  may  be 
overcome  by  evidence.     A  consignor  may  have  a  right  of  action 
against  the  carrier  by  reason  of  ownership.     So  he  may  have 
such  right  of  action  on  privity  of  contract.  The  contract  seems 
to  be  controlling,  at  least  to  a  certain  extent,  in  all  ca.ses.  Evans 
v.  :MarIett,   1   Ld.   Kaym.  271;  Davis  v.  James,  5  Burr.  2680; 
Mason  v.  Lickbarrow,  1  H.  Bl.  357;  Moore  v.  Wilson,  1  Term. 
K.  659:  Joseph  v.  Knox,  3  Camp.  320;  Dunlap  v.  Lambert,  6 
Clark  &  F.  600;  Freeman  v.  Birch,  3  Q.  B.  492;  Blanchard  v. 
Page,  8  Gray,  281;  Finn  v.  R.  R.  Co.,  112  Mass.  524;  Carter  v. 
Graves,  9  Yerg.  446;  Northern  Line  Packett  Co.  v.  Shearer,  61 
III.  263;  Southern  Exp.  Co.  v.  Craft,  49  .Mi.ss.  480.     A  careful 
analysis  of  these  eases  will  be  found  in  a  well  written  article 
by  JudLTC  Bierce,  of  Tennessee,  in  7  South.  Law  Rev.   (N.  S.) 
255-2S3. 

It  appears  that  much  depends  upon  the  nature  of  the  act  com- 
plained of  and  the  character  of  the  action.     Thus,  in  Carter  v. 
Graves,  supra,  it  was  said — "that,   in  all  actions  on  the  ease 
against  a  carrier  for  a  loss  or    injurv-    done    to    property,    the 
wrong  is  the  gist  of  the  action,  and  the  contract  to  deliver  col-"lrvv  o:>*jtUA/* 
lateral  to  it.     In  all  actions  of  assumpsit  for  not  delivering  ac-  ^^^j^  ^^^7^ — 
cording  to  contract,  the  contract  to  deliver  is  the  gist  of  the  ac-'^^^'^^-f'*'''''^ 
tion,  and  the  loss  or  injury  sustained  is  collateral  thereto."     In  '^'*!!^^!!|^^^j^ 
several  of  the  cases  above  cited,  an  action  for  the  breach  of  the  -xX^sl.  o3>^ 
contract  was  maintained  by  a  party  to  the  contract  having  no  0>*-^  V*^-*^ 
ownership  or  interest  in  the  property  carried.     Thus,  in  Joseph 


190  PARTIES   TO   ACTIONS.  [ChAP.   II. 

V.  Knox,  supra,  the  plaintiffs  had  no  ownership  nor  interest  in 
the  goods,  but,  as  shippers,  were  parties  to  the  contract,  and  it 
was  held  that  they  might  maintain  the  action  upon  the  bill  of 
lading  for  the  failure  to  deliver  and  carry.  Lord  Chief  Justice 
Ellenborough  observed  that,  "there  is  a  privity  of  contract  es- 
tablished between  these  parties  by  means  of  the  bill  of  lading. 
That  states  that  the  goods  were  shipped  by  the  plaintiffs,  and 
that  the  freight  for  them  was  paid  by  the  plaintiff's  in  London. 
To  the  plaintiff's,  therefore,  from  whom  the  consideration  moves, 
and  to  whom  the  promise  is  made,  the  defendant  is  liable  for 
the  non-delivery  of  the  goods.  After  such  a  bill  of  lading  has 
been  signed  by  his  (the  carrier's)  agent,  he  cannot  say  to  the 
shippers  that  they  have  no  interest  in  the  goods,  and  are  not 
damnified  by  his  breach  of  contract.  I  think  the  plaintiffs  are 
entitled  to  recover  the  value  of  the  goods,  and  they  will  hold 
the  sum  recovered  as  trustees  for  the  real  owner." 

So  in  Hooper  v.  liailway  Co.,  27  Wis.  91,  it  was  said  that 
"the  shipper  is  a  party  in  interest  to  the  contract,  and  it  does 
not  lie  with  the  carrier  who  made  the  contract  with  him  to  say, 
upon  a  breach  of  it,  that  he  is  not  entitled  to  recover  the  dam- 
ages unless  it  be  shown  that  the  consignee  objects;  for  without 
that  it  will  be  presumed  that  the  action  w'as  commenced  and  is 
prosecuted  with  the  knowledge  and  consent  of  the  consignee,  and 
for  his  benefit.  The  consignor  or  shipper  is,  by  operation  of  the 
rule,  regarded  as  a  trustee  of  an  express  trust,  like  a  factor  or" 
other  mercantile  agent  who  contracts  in  his  own  name  on  behalf 


of  his  principal.'^  Here  the  defendant  contracted  solely  with 
the  plaintiff.  In  the  contract,  the  defendant,  with  full  knowl- 
edge of  the  facts,  recognized  the  plaintiff  as  the  sole  owner  of 
the  property.  The  freight  had  been  fully  paid  in  behalf  of  the 
plaintiff.  To  him,  the  defendant,  in  consideration  of  such  pay- 
ment, expressly  agreed  to  deliver  the  property  at  the  place  of 
consignment.  This  express  agreement  was  broken  by  the  re- 
fusal to  so  deliver,  except  upon  condition  of  the  further  pay- 
ment of  the  unauthorized  exaction.  This  unauthorized  exaction 
was  complied  with  when  the  delivery  was  made.  Having  broken 
the  contract,  and  received  the  overcharge  in  consequence  of  the 
breach,  the  defendant  seeks  to  escape  liability  for  the  breach 
on  the  ground  that  the  only  party  Avith  whom  it  contracted  was 
not  in  fact  the  owner  of  the  property,  and  did  not  personally 
furnish  and  pay  the  overcharge  exacted  as  a  condition  of  the 


Sec.  1.]  WATERMAN  V.  C,  M.  &  ST.  P.  R.  R.  CO.  191 

delivery.    To  hold  such  a  defense  available  would,  in  effect,  ab- 
rogate an  express  written  contract.     One  exception  to  the  stat- 
utory rule  that  "every  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest"  (section  2605),  is  that  *'a  trus- 
tee of  an  express  trust     *     *     *     may  sue  without  joining  with 
him  the  person  for  whose  benefit  the  action  is  prosecuted. ' '  Sec- 
tion 2607.    ''A  trustee  of  an  express  trust,  within  the  meaning 
of  this  section."  must  "be  construed  to  include  a  person  with'^^^^^';yv*t^  "^ 
whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of  ^^^''*^^^^  ^^J 
another. ' '    Id.    By  amendment  these  provisions  have  been  made  _;^^„^  )j?>  W 
applicable  to  actions  brought  in  justice  courts,  as  this  was.  Sub-  tX33i;v>5^,  ^ 
division  27,  §  2,  c.  194,  Laws  1879.     If  the  consignor  or  ship-    p>^p»>-   '^^^ 
per  could  properly  be  "regarded  as  trustee  of  an  express  trust,"    (^^^  «s-a^^,<^ 
under  this  statute,  as  held  in  Hooper  v.  R.  R.  Co.,  supra,  then    J^^[2^^^^^2^s> 
certainly  the  person  described  in  the  contract  as  consignor,  con^^yT^^X^yT. ^^ 
signee,  and  sole  owner,  and  for  whom  the  freight  has  been  paid,  f  .^j^^^  jn>*3- 
must  also  be  regarded  as  a  trustee  of  an  express  trust  under  the  \ 
statute.     Allen  v.  Kennedy,  49  Wis.  549    [S.  C.  5  N.  W.  Rep 
906]. 

The  judgment  of  the  circuit  court  is  affirmed.* 


^y^    ^^^-srC^^^- 


STILLWELL  v.  HURLBERT. 

18  N.  Y.  374.     [1858.] 

Appeal  from  the  supreme  court.    Action  upon  a  bond  to  the   l^J^j,^^^-^ 
plaintiff,  sheriff  of  Oswego,  reciting  the  issuing  of  an  execu-  </..^>x^/v^.^^^\s 
tion  directed  to  the  plaintiff'  against  one  Eri  D.  Harrington,  and  ,^iuii;:AA^.  ^  aW 
that  certain  goods  and  chattels  which  appeared  to  belong  to  the  ^y^^^j^^^XS--  ^ 
latter  were  claimed  by  Wm.  II.  Harrington  and  conditioned  to  <y^gu^   <wa--i>:^ 
indemnify  the  plaintiff'  and  all  persons  aiding  or  assisting  him    W^-^  *»-  ■^^■**^ 
in  the  premises,  from  all  damages  for  levying  upon  and  selling    k,^  \-».^-«^ 
the  property.    The  breach  was  the  recovery,  by  one  Capron,  of  a  ^  ^J^^')  *^ 
judgment  against  Lee,  a  deputy  of  the  plaintiff,  for  the  seizure  v^>j^^--^>^ 
and  sale  by  the  latter  of  the  property  levied  upon;  the  pay-  °]]^j;;^^_^;^^t^ 
ment  by  Lee  of  the  judgment  and  costs  of  defending  the  action  •^'-''^^^'-^ 
in  which  it  was  recovered,  and  the  neglect  of  the  defendants  to 
indemnify  Lee.     The  complaint  stated  an  assignment  by  Lee, 

*See  also  Snyder  v.  Adams  Express  Co.,  77  Mo.,  523. 


192  PARTIES  TO   ACTIONS.  [ChAP.   II. 

to  the  plaintiff,  of  his  interest  in  the  bond  and  of  his  right  of 
action,  by  reason  of  the  facts  stated.  Upon  the  trial  there  was  a 
failure  to  prove  that  the  assignment  was  ever  delivered  to  the 
plaintiff,  or  that  he  knew  of  its  existence.  The  defendants 
moved  for  a  non-suit,  which  was  denied.  The  plaintiff  had  a 
verdict,  which  the  supreme  court,  at  general  term  in  the  fifth 
district,  refused  to  set  aside;  and  judgment  thereon  having 
been  perfected,  the  defendants  appealed  to  this  court. 

Harris,  J.     At  the  time  the  bond  upon  which  this  action  is 
brought  was  executed,  the  plaintiff  was  sheriff  of  Oswego  and 
Lee  was  his  deputy.     An  execution  in  favor  of  the  defendant 
against  one  Harrington,  had  been  delivered  to  Lee  as  such  dep- 
uty, and  property  in  the  possession  of  the  defendant  in  the  ex- 
ecution had  been  seized  by  him.     To  induce  the  deputy  to  sell 
the  property  thus  taken  in  execution,  and  which  might  belong 
to  some  other  person,  the  defendants,  who  were  plaintiffs  in 
the  execution,  executed  the  bond  in  question.    Aware  that  any 
person  claiming  the  property  which  had  been  taken  might,  at 
his  election,  sue  either  the  sheriff  or  the  deputy,  it  was  made  a 
condition  of  the  bond,  that  the  defendants  should  indemnify 
not  only  the  sheriff,  but  "all  and  every  person  and  persons  aid- 
ing and  assisting  him  in  the  premises."    In  respect  to  the  dep- 
uty who  held  the  execution,  and  who  in  fact  received  the  bond, 
the  plaintiff  became  the  trustee  of  an  express  trust.    The  obliga- 
tion was  executed  to  him  for  the  benefit  of  his  deputy.     It  is 
the  precise  case  for  which  provision  is  made  in  the  113th  section 
of  the  code.    The  suit  was  properly  brought  in  the  name  of  the 
.^^  sheriff^    The  deputy  having  been  sued  for  the  price  of  a  wagon 
>^^  o^         he  had  sold  under  the  defendant's  execution,  and  a  judgment 
^*^^._  having  been  recovered  against  him,  the  defendants  became  liable, 
^T""^^!]^  according  to  the  condition  of  their  bond,  for  the  amount  recov- 
^,^^^jX^  ered  against  him,  together  with  the  expenses  incurred  by  him  in 

'^^"cS  defending  the  action.    Without  reference,  therefore,  to  the  as- 

signment of  the  demand  to  the  plaintiff,  or  whether  such  an  as- 
signment was  perfected  or  not,  the  action  was  well  brought  and 
the  recovery  right. 

The  judgment  of  the  supreme  court  should  therefore  be  af- 
firmed. N 


Sec.  1.]  M 'comas  v.  cov.  mut.  life  ins.  co.  193 

McCOMAS  V.  COVENANT  MUTUAL  LIFE  INS.  CO. 

56  Mo.  573.      [1874.] 

Adams,  Judge,  delivered  the  opinion  of  the  court. 
This  was  an  action  on  a  life  policy  issued  by  the  defendant  on 
the  29th  day  of  October,  18G2,  insuring  the  life  of  Harry  G.  Mc- 
Comas,  husband  of  the  plaintiff,  in  the  sum  of  five  thousand  dol-  Rjj^,,,,^^  .  \>ro- 
lars.    The  consideration  on  the  face  of  the  policy,  and  by  refer-  J^jjL/.,A^^txVju-K, 
ence  to  a  statement  on  the  margin,  is  expressed  to  be  paid  for  ^  ,p,<^vloA.  vjV 
the  use  and  benefit  of  the  plaintiff,  the  wife  of  the  assured.        vw^^^ajost-.^  < 
The  policy  was  issued  to  the  husband,  and  the  covenant  is  to  Xoyv  Xvrj>-^»i>-o^ 
pay  to  him,  his  executors,  administrators  or  assigns,  in  sixty    yjs^- 
days  after  due  notice  and  proof  of  death,  the  sum  assured,  the 
balance  of  the  year's  premium,  if  any,  being  first  deducted  there- 
from together  with  all  indebtedness  of  tht^  party  to  the  com- 
pany. 

The  annual  premium  to  be  paid  was  one  hundred  and  eighty- 
nine  dollars — ninety-five  dollars  of  which,  was  to  be  paid  in 
money  in  two  equal  installments  of  $47.50,  and  ninety-four  dol- 
lars in  annual  notes.  The  husband  died  on  the  3rd  day  of  June, 
1871,  leaving  the  last  six  annual  premium  notes  unpaid. 

This  suit  was  commenced  on  the  ninth  day  of  December,  1871, 
by  the  plaintiff'  as  beneficiary  under  this  policy,  for  the  amount 
assured.     The  defendant  filed  a  demurrer  to  the  petition  upon 
the  ground  that  the  plaintiff  could  not  sue  as  beneficiary  on  this 
policy.     This  demurrer  was  overruled,  and  the  same  point  was 
afterwards  raised  by  motion  in  arrest  and  saved  by  an  excep- 
tion to  the  action  of  the  court  in  overruling  the  motion.     *     *     * 
First — The  first  point  relied  on  by  the  defendant  is,  that  this 
action  cannot  be  maintained  by  the  plaintiff  on  the  policy  of 
insurance,  because  by  the  terms  of  the  policy  the  sum  assured 
was  to  be  paid  to  the  deceased  or  his  executors,  administrators 
or  assigns.     This  objection  was  raised  by  motion  in  arrest,  and 
also  on  the  trial  by  objection  to  the  admissibility  of  the  policy 
of  insurance  as  evidence.     It  is  manifest,  from  the  recital  in 
the  policy  in  regard  to  the  consideration  to  be  paid  as  premium, 
that  this  insurance  was  eft'ected  bv  the  husband  for  the  role 
benefit  of  his  wife.     The  husband,  therefore,  was  constituted  a 
trustee  for  his  wife.     He  became  a  trustee  of  an  express  trust 
and  his  wife  was  the  beneficiary..     Our  statute  allows  a  trustee 
of  an  express  trust  to  sue  in  his  own  name  without  joining  with 
13 


294  PARTIES  TO   ACTIONS.  [ClIAP.    II. 

him  the  person  for  whose  benefit  the  writ  is  prosecuted.  (2 
't'^^'i  Wagn.  Stat,  1000,  sec.  3.)  But  this  statute  does  not  preclude 
■^""*^  I  the  "beneficiary  under  a  contract  like  this  from  prosecuting  a 


^"^"^"^^t^it  without  joining  the  trustee.     'niis_cosi^act_oiLits  face  wa.s 
''^'iJ^'Cri  rnfld^for  the  benefit  of  the  wife  aloITe.  and  she  is,  therefore. "the 


,^^,^,,.,^,,.^.^    ^:g^r^^rt7"ininterest  and  had  the  right  to  bring  this  suit.     A 

5,.^-a3cW.  recoveryTylier  would  be  a  bar  to  another  action  by  the  trustee. 

In  Rogers  &  Peck  v.  Gosnell  (51  Mo.,  466)   it  was  held,  that 

I  j|  either  the  trustee  or  beneficiary  of  a  contract  might  sue,  and  a 

I I  recovery  by  either  would  be  a  bar  to  another  action.  (Miles  v. 
Davis,  19  Mo.  408 ;  Harney  v.  Butcher,  15  Mo.,  89 ;  Van  Schaick 
V.  K  k,  38  N.  Y.,  346;  Record  v.  Sanderson,  2  How.,  179  ;  Car- 
ter V.  The  Mayor  of  Albany,  43  N.  Y.,  399 ;  Lawrence  v.  Fox,  20 

N   Y.,  268.)* 

Judgment  affirmed. 


IN  RE  ROTHERHAM  ALUM  CO. 
L.  R.  25  Ch.  D.  103.     [1883.] 

Cotton,  L.  J.  This  is  an  appeal  by  Mr.  Peace  from  the  re- 
fusal of  Vice-Chancellor  Bacon  to  vary  the  Taxing  ^Master's  cer- 
tificate. The  facts  are  shortly  these.  "Sir.  Peace  was  the  solici- 
tor employed  by  Mycock,  the  promoter  of  the  company,  to  do 
what  was  necessary  for  the  formation  of  the  company,  and  was 
afterwards  employed  by  the  company  about  the  conveyance  to 
the  company  of  the  property  purchased  by  it  from  Mycock.  The 
company  was  formed,  and  was  afterwards  ordered  to  be  wound 
up.  Mr.  Peace  carried  in  a  claim  for  a  bill  of  costs,  part  of 
which  is  for  work  done  on  the  retainer  of  Mycock  before  the 
formation  of  the  company.  The  Taxing  Master  has  disallowed 
this  part  of  his  bill,  and  the  Vice-Chancellor  has  affirmed  his 
decision. 

On  what  ground  can  these  costs  be  claimed  against  the  com- 
pany ?  The  appellant  relies  on  the  agreement  between  the  com- 
pany and  Mycock,  that  the  company  should  pay  all  the  costs  in- 
cidental to  the  formation  of  the  company,  and  on  subsequent 
transactions  to  which  I  shall  presently  refer. 

*For  a  full  discussion  of  this  subject  see  article  by  Professor  Wil- 
liston,  15  Harvard  Law  Review,  767. 


Sec.  1.]  IN  RE  ROTHERHAM  ALVii  CO.  195 

Now  first  as  to  the  contract  between  Mycock  and  the  company, 
that  the  company  should  pay  Mycock  the  costs  incurred  by  him 
about  forming  the  company.  That  contract  could  not  give  Mr. 
Peace  any  direct  claim  against  the  company.  We  thought,  how- 
ever, that  Mr.  Peace  might  be  held  entitled  to  stand  in  the  place 
of  Mycock  against  the  company,  and  the  ca.se  stood  over  that  it 
might  be  ascertained  whether  the  company  had  any  claims 
against  Mycock.  It  now  appears  that  the  company  have  claims 
again.st  ]\Iycock  which  would  neutralize  any  claims  by  him 
against  them,  so  Mr.  Peace  cannot  have  any  relief  on  that  foot- 
ing. 

Then  it  is  said  that  the  company  has  had  the  benefit  of  Mr. 
Peace's  services,  and  ought  to  pay  for  them.  That  argument 
cannot  in  my  opinion  prevail.  The  business  was  done  on  the 
retainer  of  ^lycock,  and  the  company  are  purchasers  from  him. 
They  get  the  benefit  of  Mr.  Peace's  services  in  no  other  way 
than  a  purchaser  gets  the  benefit  of  work  done  by  the  vendor 
on  the  property.  In  such  a  case,  even  if  there  is  a  contract  by 
the  purchaser  with  the  vendor  to  pay  all  the  expenses  of  the 
work,  that  will  not  give  the  workmen  a  claim  against  him.  The 
case  of  In  re  Hereford  and  South  Wales  Waggon  and  Engineer- 
ing Company*  was  relied  on,  where  it  was  said  that  but  for  the 
equitable  ground  of  defence  there  set  up  Walter  and  Head 
would  have  had  a  good  claim,  but  in  that  case  the  services  were 
not  done  on  the  retainer  of  any  other  person  who  was  liable  to 
pay  for  them.  In  the  same  case  Bramwell,  who  had  been  era- 
ployed  by  Walter  and  Head,  and  urged  that  the  company  had 
taken  the  benefit  of  his  services,  was  held  to  have  no  claim 
against  the  company.  The  present  case,  therefore,  is  disposed 
of  by  authority.     *     *     * 

LiNDLEY,  L.  J. :  I  am  of  the  same  opinion.  I  will  first  con- 
sider the  question  whether  any  verbal  agreement  between  the 
company  and  ilr.  Peace  that  the  company  should  pay  him,  is 
made  out.  The  case  is  in  a  peculiar  position,  for  no  one  ap- 
pears to  oppose  the  claim  of  Mr.  Peace,  or  to  sift  the  evidence 
adduced  by  him.  On  perusing  Mr.  Peace's  affidavit  I  was  in- 
clined to  think  that  he  had  made  out  his  case ;  but  on  examining' 
the  minute  book  I  find  no  corroboration  of  his  evidence,  there 
being  no  mention  of  his  claim  in  the  minutes  of  the  27th  of  Feb- 
ruary, 1881,  and  the  resolutions  of  the  21st  of  December  in  that 

*2  Ch.  D..  C21. 


196  PARTIES  TO  ACTIONS.  [ChAP.   II. 

year  being  consistent  with  either  view  of  the  ease.  I  do  not 
throw  any  discredit  on  Mr.  Peace,  who,  no  doubt,  has  given  to 
the  best  of  his  belief,  a  truthful  account  of  what  took  place  at 
the  meeting  in  February;  but  my  impression  Ls  that  there  was 
nothing  more  than  a  loose  conversation  which  could  not  consti- 
tute an  agreement  binding  on  the  company.  The  burden  of 
proof  lies  on  Mr.  Peace  to  show  an  agreement  and  I  have  ar- 
rived at  the  conclusion  that  though  there  is  evidence  to  go  to  a 
jury  of  the  existence  of  an  agreement  the  evidence  is  insufficient 
to  establish  it. 

Then  can  Mr.  Peace  apart  from  any  such  agreement  estab- 
lish his  claim?  In  my  opinion  he  cannot.  The  articles  of  as- 
sociation bind  the  company  to  pay  these  costs;  but  Mr.  Peace 
was  no  party  to  the  articles  which  only  constituted  an  agree- 
ment between  the  r»oTnpnny  i^n<^  Mypnf',l<;  If  he  had  brought 
this  action  against  the  company  with  no  materials  except  proof 
that  he  had  done  the  business,  and  the  provisions  in  the  articles, 
^  he  could  not  have  succeeded.  This  is  shown  by  many  cases, 
amongst  which  I  may  refer  to  Eley  v.  Positive  Government  Se- 
curity Life  Assurance  Company*,  where  it  was  held  that  ar- 
ticles  of  association  do  not  constitute  a  contract  between  the 
company  and  an  outsider^  A  provision  in  an  act  of  Parliament 
may  enable  an  outsider  to  sue.  There  is  in  such  cases  a  statutory' 
obligation  of  which  the  person  named  can  take  the  benefit — an 
action  for  debt  on  a  statute  being  a  well  known  old  form  of  ac- 
tion at  Common  Law ;  but  an  agreement  between  A.  and  B.  that 
B.  shall  pay  C,  gives  C.  no  right  of  action  against  B.  I  can- 
not see  that  there  is  in  such  a  case  any  difference  between 
, Equity  and  Common  Law,  it  is  a  mere  question  of  contract.  It 
is  said  that  Mr.  Peace  has  an  equity  against  the  company  be- 
cause the  company  has  had  the  benefit  of  his  labor.  What  does 
that  mean?  If  I  order  a  coat  and  receive  it,  I  get  the  benefit  of 
the  labor  of  the  cloth  manufacturer;  but  does  any  one  dream 
that  I  am  under  any  liability  to  him?  It  is  a  mere  fallacy  to 
say  that  because  a  person  gets  the  benefit  of  work  done  for 
somebody  else  he  is  liable  to  pay  the  person  who  did  the  work. 
Judgment  affirmed. 

*1  Ex.  D.,  20,  88.  <Y^^ 


f?EC.  l.J  WIIXIAMSON  V.   MICH.  FIRE  INS.   CO.  197 

WILLIAMSON  V.  :^UCHIGAN  FIRE  INSURANCE  CO. 
86  Wis.  393.     [1893.] 

Action  by  John  E.  Williamson  against  the  Michigan  Fire  & 
Marine  Insurance  Company  on  a  policy  of  insurance.  Judg- 
ment for  plaintiff.     Defendant  appeals.     Revei-sed. 

The  other  facts  fully  appear  in  the  following  statement  by 

PlNNEY,  J.  : 

This  action  was  brought  to  recover  a  loss  which  occurred  un- 
der a  policy  of  insurance  issued  by  the  defendant  April  7,  1891, 
to  the  estate  of  Jennie  Stillwell.    On  the  2d  day  of  August,  1883, 
Jenni.'  Stillwell  was  the  owner  of  the  property  insured,  and  on 
that  day  executed  and  delivered  a  note  and  mortgage  securing 
the  same  on  the  premises  in  question  to  Jennie  Perkins  for  $oOO, 
no  part  of  wlii.-h  has  beon  paid;  and  on  the  -ith  day  of  Ai)ril, 
1891    the  plaint itr  became  the  ovsTier  of  this  note  and  mortgage. 
Prior  to  the  date  of  the  policy,  Jennie  Stillwell,  the  n^ortgagor, 
died,  leaving  on.^  child.  Jennie  Stillwell,  her  sole  heir  at  law,  and 
the  owner  of  the  premises.     No  administrator  has  ever  been  ap- 
pointed on  the  estate  of  said  Jennie  Stillwell,  deceased,  but  on 
the  7th  day  of  April,  1891,  the  said  policy  of  insurance  was 
issued  bv  tiie  defendant  company  to  "the  estate  of  Jennie  Still- 
well," whereby  it  is  claimed  that  the  defendant  did  insure  said 
estate  of  Jennie  Stillwell,  for  the  period  therein  stated,  against 
loss  or  damage  by  tire,  in  the  sum  and  to  the  am.mnt  of  $400,  on 
the  one-storv,  frame,  shingle  roof  building,  occupied  as  a  dwell- 
ing house  and  millinery  store,  <m  lot  23,  block  4,  etc.,  in  Neenah, 
Wis.,  "loss,  if  auv,  tirst  payable  to  Jennie  Perkins  or  assigns,  as 
her  m..rtgage  interest  may  appear."     Plaintiff  alleged   in   his 
complaint  that  as  mortgagor,   from  and  since  the  4th  day  of 
April,  1891,  he  had  an  interest  in  the  property  so  insured  in  an 
amount  exceeding  said  insurance,  to-wit,  in  the  sum  of  $500. 
The  property  thus  insured  was  entirely  destroyed  by  fire  No- 
vember 18.  1891,  and  the  plaintiff  brings  this  action  for  the  re- 
covery of  the  sum  named  in  the  policy.     The  defendant,  in  its 
answer,  alleged,  among  other  things,  that  the  plaintiff  had  not  at 
the  time  of  the  lass,  nor  at  any  time  since,  any  title  to  or  interest 
in  the  property  in  question,  except  jointly  and  individually  with 
one  Jennie  Stillwell;  that  she  was  the  owner  in  fee  thereof,  and 
that  she  had  an  interest  in  the  property,  the  subject  of  the  ac- 
tion   jointly  with  the  plaintiff;  and  that  she  is  still  living,  and 


]^98  PARTIES  TO  ACTIONS.  [CUAP.  II. 

the  heir  at  law  of  Jennie  Stillwell,  deceased.     Upon  trial  be- 
fore the  court  without  a  jury,  the  court  held  that  the  plaintiff 
had  a  right,  upon  these  facts,  to  recover  in  his  own  name,  and 
gave  judgment  accordingly,  from  which  the  defendant  appealed. 
PiNNEY,  J.  (after  stating  the  facts.)     The  plaintiff  could  not 
maintain  an  action  upon  the  policy  in  question  as  sole  plaintiff. 
The  legal  right  of  action  was  in  the  insured,  and  the  provision 
in  the  policy,  "loss,  if  any,  first  payable  to  Jennie  Perkins  or 
assigns,  as  her  mortgage  interest  may  appear,"  operated  only  as 
a  conditional  appointment  or  order  to  pay  so  much  of  the  pro- 
ceeds of  the  policy  as  might  be  equal  to  the  amount  due  on  the 
mortgage  at  the  time  of,  and  in  the  event  of,  a  loss  under  it.    It 
was  not  operative  in  yraesenti,  and  the  insured  was  still  the 
owner  of  the  policy.     If  the  mortgage  was  paid  before  any  loss 
occurred,  it  could  not  become  effective.     These  considerations 
serve  to  show  that,  whether  the  mortgage  debt  be  greater  or  less 
than  the  amount  of  the  policy  vvhenwritten,  such  a  provision  m 
favor  of  a  mortgagee  does  not  operate  as  an  assTgniiient  ot  tne 
policy.    It  is  still  the  owner  of  the  premises  who  is  insurea,  ana 
the  contract  of  the  company  is  with  him  alone,  and  the  contin- 
ued validity  of  the  policy  is  dependent  upon  the  performance  by 
him  of  the  conditions  embraced  in  it.    It  is  not  the  interest  of 
the  mortgagee  in  the  premises  that  is  insured ;  and  it  seems  clear, 
therefore,  that  an  action  for  the  recovery  of  the  money  in  case 
of  loss  must  be  brought  in  the  name  of  the  insured,  but  that  the 
mortgagee,  in  respect  to  his  interest,  may  be  joined  with  him  a3 
coplaintiff..     The  recent  cases  of  Hodgson  v.  Insurance  Co.,  56 
N.  W.  920  (at  the  present  term,)  and  Chandos  v.  Insurance  Co. 
(Wis.)  54  N.  W.  390,  are  decisive  of  the  question  involved.     2 
Wood,  Ins.  1122;  Martin  v.  Insurance  Co.,  38  N.  J.  Law,  140; 
Insurance  Co.  v.  Davenport,  37  Mich.  613 ;  Wabasse  v.  Insurance 
Co.,  42  N.  J.  Law,  206, — may  be  referred  to  in  addition  to  the 
authorities  cited  in  these  cases.     It  is  not  the  interest  of  the 
mortgagee  that  is  insured,  but  the  interest  of  the  mortgagor ;  and 
it  seems  illogical  to  say  that  whether  such  an  appointment  will 
operate  as  an  assignment  of  the  policy,  if  it  can  so  operate  at 
all,  is  dependent  upon  whether  the  sum  due  on  the  mortgage  is 
greater  or  less  than  the  amount  of  the  loss.    The  company  says, 
in  substance,  to  the  insured:     "In  consideration  of  the  stipu- 
lated premium,  we  insure  you  against  loss  by  fire  on  the  prop- 
erty described,  in  the  sum  of  $400 ;  and  at  your  request,  in  case 


Sec.  1.1  WILLIAMSON  V.   MICH.  FIRE  INS.   CO.  199 

a  loss  occurs,  we  will  pay  it  to  J.  P.,  to  the  extent  that  any  sum 
may  then  remain  due  on  his  mortgage."  This  is  clearly  not  an 
assignment  of  the  policy,  so  that  in  case  of  loss  the  mortgagee 
alone  may  sue  and  recover  for  it.  It  is  no  more  than  a  condi- 
fmn^l^ppointment  or  agreement  for  the  future  appropriation 
^J'^IToFTTart  oJ[_the_  moneys  that  may  become  due  under  the 
policy,  accordmFU)  future  events,  depending  for  its  operation 
Il^an  actual  loss,  and  something  remaining  due  on  the  mort- 
gage. The  case  is  not  one  of  a  defect  of  parties,  but  of  a  want 
of  sufficient  interest  in  the  plaintiff  to  enable  him  to  recover. 
The  judgment  of  the  county  court  is  erroneous,  and  must  be 
reversed.*  O^     *^^- 


KENT  V.  DANA. 
100  Fed.  56.  (C.  C.  A.)      [1900.]  \ 

This  action  was  brought  by  Edward  Dana,  who  was  the  plain- 
tiff in  the  court  below,  and  who  is  the  defendant  in  error  here, 
to  recover  upon  75  interest  coupons  of  $30  each,  maturing,  part 
of  them,  Sept.  1,  1896,  part  March  1,  1897,  and  the  remainder 
Sept.  1,  1897.  These  coupons  were  originally  attached  to  cer- 
tain refunding  bonds,  being  part  of  an  issue  of  such  bonds  is- 
sued by  the  village  of  Kent,  the  defendant  below,  which  is  a 
municipal  corporation  in  Portage  county,  Ohio.  The  bonds 
bear  date  iMarch  1,  1892,  and  were  numbered  from  one  to 
eighty,  respectively,  being  for  the  sum  of  $1,000  each.  The 
bonds  are  not  y<^t  due.     *     *     * 

Severens,  Di.strict  Judge,  having  stated  the  case,  delivered 
the  opinion  of  the  court. 

*****  3.  Upon  the  question  of  the  right  of  the 
plaintiff  to  bring  the  action  we  think  there  is  no  difficulty. 
Doubtless  it  was  competent  for  the  defendant  to  show  that  the 
savings  bank  had  the  beneficial  interest  in  the  subject  of  the 
suit  in  order  to  let  in  any  defense  which  it  might  have  as 
against  the  bank;  but  it  had  no  further  interest  in  the  matter. 
A^ssuming  that  the  Savings  Bank  delivered  these  coupons  to 

*But  see  Cone  v.  Ins.  Co..  60  N.  Y.,  619,  where  it  was  held  that  the 
mortgagee,  to  whom  the  loss  was  made  payable,  was  the  proper  party 
to  sue,  and  it  was  said  that  he  was  the  only  one  who  could  sue. 

f  Statement  has  been  condensed. 


200 


PARTIES  TO  ACTIONS.  [CUAP.   11. 


Dana  for  the  purpose  of  enabling  him  to  bring  suit  upon  them, 
that  he  gave  his  cheek  therefor,  and  that  it  was  understood  be- 
tween them  that  he  should  turn  over  the  proceeds  of  the  col- 
lection to  the  bank,  and  take  up  his  check,— which  is  a  construc- 
tion of  the  evidence  as  favorable  to  the  defendant  as  it  would 
bear,— still  this  would  suffice  to  enable  him  to  bring  the  suit  in. 
his  own  name.  His  right  to  recover  would  be  no  larger  tlian 
that  of  the  bank.  In  that  respect  he  would  stand  precisely  in 
its  position,  and,  if  the  bank  was  a  bona  tide  holder,  he  would 
recover  in  that  character.  The  title  to  negotiable  paper  payable 
to  bearer  passes  by  delivery,  unless  the  attendant  circumstances 
show  that  such  was  not  the  intention.  But  here  the  bank  trans- 
ferred these  coupons  for  the  purpose  of  enabling  him  to  bring 
suit.  It  is  implied  in  that,  that  such  title  would  pass  as  would 
enable  him  to  sue,  for  without  it  the  object  of  the  transfer  could 
not  be  accomplished.  Possession  of  such  paper  where  it  is  pay- 
able to  bearer,  or  where  it  is  payable  by  indorsement  to  the 
holder,  coupled  with  an  authority  to  bring  suit  upon  it,  is  suffi- 
cient for  that  purpose.  In  Law  v.  Parnell,  7  C.  B.  (n.  s.)  282, 
the  action  was  brought  in  the  name  of  an  agent  as  custodian  of 
paper  held  for  another,  but  indorsed  in  blank,  the  agent  being 
authorized  by  his  principal  to  bring  suit  upon  it.  It  was  held 
that  he  had  sufficient  title  to  maintain  the  suit,  Earle,  C.  J., 
saying : 

"The  bill  being  indorsed  in  blank,  the  bank  had  the  right  to 
hand  it  over  to  a  third  person  to  sue  upon  it,  without  indorsing 
it ;  and  therefore  the  plaintiff,  if  he  was  the  lawful  holder  of  the 
bill,  and  had  authority  from  the  bank  to  do  so,  had  a  perfect 
right  to  sue  upon  it." 

This  case  was  directly  approved  in  the  case  of  Obrien  v. 
Smith,  1  Black,  99,  17  L.  Ed.  64,  where  the  suit  was  brought  by 
the  cashier  of  a  bank  upon  a  note  belonging  to  it,  but  of  which 
he  had  control  for  its  use.  In  affirming  a  recovery  against  the 
objection  that  the  plaintiff  could  not  recover  in  his  own  name, 
Chief  Justice  Taney,  speaking  for  the  court  said : 

"The  authorities  referred  to  by  the  counsel  for  the  defendant 
in  error  are  conclusive,  and  it  cannot  be  necessary  to  discuss 
these  questions,  which  we  consider  as  too  well  settled  to  be  now 
open  to  serious  controversy." 

The  case  of  Boyd  v.  Corbitt,  37  Mich.  52,  is  precisely  in  point. 
There  Boyd,  who  was  a  collecting  agent  for  one  Martin,  received 


Sec.  1.]  KENT  V.  DANA.  201 

from  him  a  note  indorsed  in  blank,  and  brought  suit  thereon  in 
his  own  name;  and  it  was  held  that  he  had  sufficient  title  on 
which  to  maintain  the  suit. 

Where,  as  in  Ohio,  the  code  of  procedure  requires  that  the 
suit  shall  be  brought  by  the  real  party  in  interest,  it  is  never- 
theless held  that,  when  the  plaintiff  is  the  lawful  holder  of  the 
note,  it  is  no  defense  to  the  maker  to  show  that  the  transfer  un- 
der which  the  plaintiff  holds  it  is  without  consideration,  or  sub- 
ject to  equities  between  him  and  his  assignor,  or  colorably,  and 
merely  for  the  purpose  of  collection,  and  that  it  is  sufficient  if  he 
have  the  legal  title,  either  by  written  transfer  or  delivery,  what- 
ever may  be  the  equities  of  his  relation  with  his  assignor.  White 
V.  Stanley,  29  0.  St.  423 ;  Eaton  v.  Alger,  47  N.  Y.  345 ;  Hays 
V.  llathorn,  74  N.  Y.  486 ;  Cottle  v.  Cole,  20  Iowa  481.     *     *     * 

We  think  there  is  no  error  shown  in  the  record,  and  the  judg- 
ment of  the  circuit  court  is  accordingly  affirmed. 


GAY  v.  ORCUTT. 
169  Mo.  iOO.     [19U2.] 

Robinson,  J.  This  action  was  begun  in  the  Grundy  Circuit 
Court  on  December  28,  against  the  defendants  as  officers  of  the 
Citizens'  Bank  of  Jamesport,  Mi.ssouri,  to  recover  certain  de- 
posits alleged  to  have  been  received  by  the  defendants  between 
July  12,  1892.  and  July  13,  1893,  when  the  bank  was  known  by 
the  defendants  to  be  insolvent  or  in  failing  circum.stances.  On 
defendants'  application  a  change  of  venue  was  awarded  to  the 
circuit  court  of  Chariton  county. 

The  petition  is  in  thirty-six  counts,  each  predicated  on  section 
2760,  Revised  Statutes.  1899,  which  makes  the  officers  of  a  bank 
individually  responsible  for  deposits  received  with  their  assent 
after  they  have  knowledge  that  the  bank  is  insolvent  or  in  fail- 
ing circumstances. 

In  order  to  avoid  a  multiplicity  of  suits,  the  depositors  as- 
signed their  claims  to  the  plaintiff*,  and  this  action  was  begun  in 
his  own  name.  The  case  was  tried  before  a  jury  and  resulted  in 
a  verdict  and  judgment  for  plaintiff,  and  defendants  have  ap- 
pealed. 

The  first  of  the  series  of  errors  necessary  to  notice  which  have 


202  PAKTIES  TO  ACTIONS.  [ClIAP.   II. 

been  assigned  by  the  defendants  for  a  reversal  of  the  judg- 
ment relates  to  the  action  of  the  court  below  in  allowing  this 
action  to  be  prosecuted  in  the  name  of  John  L.  Gay,  and  refus- 
ing to  dismiss  the  same  on  the  stipulation  between  plaintiff, 
John  L.  Gay,  and  the  defendants  for  that  purpose.  It  is  claimed 
by  defendant  that  under  our  statute  (sec.  540,  R.  S.  1899),  re- 
quiring suits  to  be  brought  in  the  name  of  the  real  party  in  in- 
terest, the  assignee  of  the  cause  of  action  is  regarded  as  the  real 
party  in  interest  and  he  is  allowed  to  dismiss  or  othenvise  con- 
trol the  conduct  of  the  case  to  the  exclusion  of  the  assignors, 
where  suit  is  brought  on  the  assigned  accounts. 

The  contention  on  the  behalf  of  the  depositors  was  that, 
where,  as  here,  the  assignee  refuses  to  further  prosecute  the  ac- 
tion, the  court  will  upon  indemnity  as  to  cost  and  damages,  per- 
mit the  cause  to  proceed  in  the  assignee's  name,  and  not  allow 
the  latter  to  dismiss  or  discontinue  the  action.  It  seems  that 
this  case  was  originally  commenced  in  the  Davies  Circuit  Court, 
but  afterwards  dismissed,  and  the  cost,  amounting  to  some  sixty 
odd  dollars,  taxed  against  the  plaintiff  Gay.  "Whereupon  the 
present  suit  was  instituted,  and  afterwards  an  execution  was 
issued  against  Gay  for  the  costs  in  the  Davies  Circuit  Court, 
and  demand  made  upon  him  therefor. 

Becoming  apprehensive  about  the  accumulation  of  the  cost, 
he  informed  the  counsel  for  the  defendants  that  he  never  author- 
ized this  action  to  be  brought,  and  entered  into  a  stipulation 
with  them  to  dismiss  the  cause  upon  defendants  paying  the 
costs  which  had  been  adjudged  against  him  in  the  Davies  Circuit 
Court,  together  with  all  cost  which  had  or  might  accrue  in  the 
present  suit  up  to  the  time  of  such  dismissal.  In  the  meantime, 
however,  having  learned  of  the  contemplated  dismissal  and  be- 
fore the  same  was  consummated,  but  after  the  filing  of  the  above 
stipulation,  the  depositors  filed  a  motion  to  have  the  case  proceed 
in  Gay's  name  for  their  use  and  benefit.  The  motion  was  sus- 
tained by  the  court  upon  the  depositors  giving  bond  in  the  sum 
of  one  thousand  dollars  to  indemnify  him  against  cost  and  dam- 
ages, and  defendants  saved  their  exceptions  to  this  action  of 
the  court. 

The  plaintiff  thereupon  filed  a  motion  to  dismiss  the  suit  on 
the  grounds  that  he  did  not  authorize  the  action  to  be  brought, 
the  said  suit,  having  been  instituted  without  consulting  him  or 
without  his  knowledge  or  consent,  and  that  he  had  no  knowl- 


Sec.  1.1  GAY    V.    ORCUTT. 


203 


edge  of  the  assignment  of  the  said  claims  to  him  and  never 
agreed  with  the  assignors  to  bring  this  suit  or  authorized  any 
other  person  to  do  so.  The  court  overruled  this  motion  and  the 
defendants  excepted. 

At  common  law  in  the  case  of  assignments  of  causes  of  action, 
arising  ex  contractu,  all  suits  upon  such  assigned  causes  of  ac- 
tion, with  the  exception  of  negotiable  instruments,  must  be 
brought  in  the  name  of  the  party  vested  with  the  legal  interest 
in  the  contract,  and  not  in  the  name  of  the  assignee.  Code  of 
Civil  Procedure,  Revised  Statutes,  1899,  section  540,  however, 
has  made  a  change  in  the  relation  to  parties  to  actions.  Under 
the  provisions  of  this  section,  the  assignee  of  the  cause  of  action 
arising  ex  contractu  is  the  real  party  in  interest,  and  as  such 
may  maintain  the  action  in  his  o\\ti  name,  regardless  of  any 
collateral  agreement  between  himself  and  the  assignor  of  the 
proceeds.  This  is  now  the  settled  doctrine  in  this  state  (Guer- 
ney  v.  Moore,  131  Mo.  650). 

The  plaintilY  being  the  real  party  in  interest  undoubtedly  had 
the  exclusive  right  to  control  the  action  and  might  dismiss  or 
discontinue  the  ease  without  assignor's  sanction.  The  assignors 
bi'ing  strangers  to  the  action  will  not  be  allowed  to  interfere  in 
the  suit  to  prevent  a  dismissal  of  the  case  or  otherwise  control 
the  conduct  of  the  case.  P:<iually,  of  course,  the  assignors  had 
no  standing  in  court  to  submit  a  motion  to  carry  on  the  suit  in 
Gay's  name  after  he  had  refused  to  prosecute  the  same.  This 
doctrine  is  affirmed  and  settled  by  many  authorities. 

The  right  of  a  stranger  to  a  suit  to  interfere  with  its  process 
or  conduct  came  up  for  decision  in  Hoover  v.  Railroad,  115  Mo. 
77.  There  it  was  held  that  none  but  parties  to  suits  will  be  per- 
mitted to  interfere  with  or  control  the  conduct  of  the  suit.  The 
court  in  that  case  said,  "The  general  rule  that  none  but  parties 
to  a  suit  will  be  allowed  to  interpose  in  its  control  obtains  in 
this  state  as  well  as  in  other  jurisdictions." 

A  similar  rule  was  applied  in  State  ex  rel.  v.  Clymer,  81  Mo. 
122.  To  the  same  effect  in  Fiske  v.  Lamoreaux.  48  Mo.  523. 
Freeman  in  his  work  on  E.^ecution,  section  75,  in  expressing  his 
views  on  the  question  before  us,  says:  "The  general  rule  that 
none  but  parties  to  a  suit  will  be  allowed  to  interfere  with  its 
management,  is  equally  applicable  to  the  writ  of  execution  which 
may  be  i.ssued  at  the  termination  of  the  action.  None  but  the 
parties  to  the  writ,  who  are  liable  to  be  injured  by  it,  can  com- 


204 


PARTIES  TO  ACTIONS.  [CHAP.   11. 


plain  of  irregularities  with  which  it  may  be  affected.  Hence, 
no  stranger  to  the  action  can  obtain  an  order  quashing  the  ex- 
ecution." 

To  permit  assignors,  after  having  transferred  their  entire  in- 
terests in  the  claims,  to  control  the  conduct  of  the  suit,  would 
not  only  be  against  the  plain  intent  of  our  code,  but  would  in- 
volve a  case  in  collateral  issues  irreconcilable,  and  the  parties 
and  the  court  in  confusion  inextricable.  If  parties  wish  to 
transfer  or  assign  their  claims  or  rights  of  action  to  another  for 
convenience,  economy  or  what  not,  they  must  understand  that 
with  the  assignment  goes  their  right  to  control  or  interfere  with 
suits  that  may  be  brought  thereon.  If  parties  wish  to  control 
suits  begun  upon  accounts  in  their  favor,  they  must  retain  con- 
trol of  their  accounts. 

As  the  court  would  have  no  right  in  the  first  instance,  to 
force  one  to  whom  an  account  had  been  assigned,  without  re- 
ward or  hope  thereof  from  the  assignor,  to  assume  the  responsi- 
bility of  its  collection  by  suit,  it  equally  is  wanting  in  authority 
to  force  against  one's  will  the  continuance  of  the  undertaking 
voluntarily  assumed  to  collect  by  suit  an  assigned  account  or 
accounts,  which  for  reasons  of  prudence  the  assignee  might  con- 
clude to  abandon,  and  for  a  still  greater  reason  would  the  court 
be  wanting  in  authority  to  force  an  assignee  to  continue  a  suit 
on  an  assigned  account  in  his  own  name  when  the  assignee,  as 
in  this  case,  protests  that  he  never  caused  the  suit  to  be  in- 
stituted in  the  first  instance.  The  record  in  this  case  shows 
that  the  assignee  never  in  fact  gave  his  consent  that  this  suit 
might  be  begun  in  his  name,  but  only  that  he  had  been  selected 
by  the  depositors  of  the  defendant  bank,  as  the  one  to  whom 
the  accounts  should  be  assigned,  and  that  he  did  consent  that 
the  suit  which  was  originally  instituted  in  his  name  in  Davies 
County  might  be  brought,  and  in  which  suit  he  was  aftei-wards 
compelled  to  take  a  nonsuit,  and  which  resulted  in  the  costs 
above  mentioned  being  taxed  against  him.  This  suit  was  begun 
apparently  upon  the  assumption  on  the  part  of  the  attorneys  for 
the  assignor,  that  as  the  plaintiff  Gay  had  consented  to  begin 
one  suit  upon  the  assigned  accounts  (which  suit  he  was  com- 
pelled to  abandon  on  account  of  unfavorable  conditions  arising 
in  its  progress),  he  certainly  would  sanction  another  suit  to  be 
maintained  upon  the  accounts  in  his  name,  in  Grundy  county, 
where  the  unfavorable  conditions  that  lead  to  his  taking  the 


Sec.  l.J  GAY  V.  ORCUTT.  205 

nonsuit  in  the  first  instance  did  not  exist.  "We  have  carefully 
examined  the  authorities  cited  by  the  able  counsel  for  the  re- 
spondents wherein  the  courts  have,  to  avoid  a  failure  of  jus- 
tice, permitted  suits  to  be  prosecuted  or  continued  in  the  name 
of  the  real  party  in  interest,  after  the  original  party  or  parties 
thereto  have  lost  all  interest  therein,  but  they  do  not  apply  to 
the  conditions  of  this  case  where  the  real  party  in  interest  had 
asked  the  case  to  be  dismissed.  The  judgment  will  therefore 
be  reversed  and  the  cause  remanded  to  the  circuit  court  with 
directions  to  dismiss  the  suit  in  pursuance  with  the  stipulation 
entered  into  between  the  defendants  and  the  plaintiff  Gay.  All 
concur. 


RAVENEL  V.  INGRAM. 
131  iV.  C,  5 19.    [190:^.] 

FuRCHES,  C.  J.  This  is  an  action  for  breach  of  covenants 
contained  in  three  deeds  made  by  John  Ingram,  the  defend- 
ant's testator, — one  contained  in  a  deed  to  T.  J.  Corbin,  one  in 
a  deed  to  D.  X.  Evitt,  and  one  in  a  deed  to  H.  E.  Gibson.  The 
plaintiff  is  a  subsequent  purchaser  of  the  land  mentioned  in 
the  two  first  named  deeds,  which  he  holds  under  deeds  with- 
out warranty.     •     •     * 

This  disposes  of  the  action  so  far  as  the  first  two  warranties 
are  concerned.  But  the  plaintiff*  includes  in  his  action  a  claim 
for  damages  on  account  of  a  breach  of  warranty  in  the  deed  to 
Gibson.  This  he  cannot  maintain,  whatever  rights  Gibson  may 
have.  The  plaintiff  does  not  claim  to  have  a  deed  for  this  tract, 
but  bases  his  action  and  claim  to  recover  on  the  following  con- 
tract:  "Highlands,  X.  C,  3d  Feb.,  1898.  I,  H.  E.  Gibson, 
covenant  and  agree  that,  if  the  suit  brought  against  me  by 
Henry  Stewart  should  be  decided  against  me,  that  I  will  grant 
and  will  assign  to  S.  P.  Ravenel,  Jr.,  my  right  to  sue  John  In- 
gram on  the  covenant  of  warranty  contained  in  the  deed  of  con- 
veyance from  him  to  me ;  provided,  however,  that  S.  P.  Ravenel, 
Jr.,  will  pay  over  the  surplus  recovered  from  John  Ingram  to 
me,  after  repaying  himself  the  amount  he  shall  have  to  expend 
in  the  defense  of  said  suit,  and  the  $10  paid  me  this  day.  Wit- 
ness my  hand  and  seal  this  3d  day  of  February,  1898.  H.  E. 
Gibson.     (Seal.) "    The  plaintiff  does  not  claim  to  be  the  owner 


206  PARTIES  TO   ACTIONS.  [CllAT.    il. 

of  this  tract  of  land,  and  Gibson  could  not  assign  the  covenant 
of  warranty  without  assigning  the  land.  The  warranty  is  a 
covenant  real,  and  runs  with  the  land  (the  estate),  and  cannot 
be  assigned  or  separated  from  it.  Markland  v.  Crump,  supra 
(18  N.  C.  94).  But  this  deed  also  contains  a  covenant  of  seisin, 
which  is  a  personal  covenant,  and  does  not  run  with  the  land, 
and  was  broken  when  the  deed  was  made,  if  the  grantor,  In- 
gram, did  not  then  have  the  title.  Pears  Law  Lect.  185.  But 
this  agreement  does  not  convey  this  chose  to  the  plaintiff,  if  it 
could  be  conveyed,  but  only  says  if  Stewart  succeeds  in  his  suit 
he  will  give  the  plaintiff  a  right  to  bring  a  suit  on  it,  upon  con- 
dition that  the  plaintiff  will  pay  him  all  he  recovers,  except  the 
cost  of  the  action  and  $10  the  plaintiff'  paid  him  that  day.  So 
the  plaintiff  was  to  get  nothing  out  of  the  suit,  except  tiie  pleas- 
ure of  having  a  law  suit  with  the  defendant.  It  is  clearly  a 
champertous  transaction  of  the  first  water,  and  is  void.  Barnes 
V.  Strong,  54  N.  C.  100;  Munday  v.  Whissenhunt,  90  X.  C.  458. 
Besides,  the  statute  requires  the  action  to  be  brought  in  the 
name  of  the  true  owner  or  party  interest.  Code  §  177.  And 
so  the  plaintiff  could  not  maintain  this  action,  even  were  it  not 
champertous;  but  as  the  contract  under  which  he  brought  the 
suit  is  champertous  and  void,  he  certainly  cannot  do  so. 

For  the  reasons  we  have  stated,  the  plaintiff"  cannot  succeed 
in  this  action,  and  the  judgment  of  the  court  below  is  affirmed. 


STEWART  V.  PRICE.* 

64  Km.,  191.     [1902.] 

Greene,  J.  The  defendant  in  error,  J.  E.  Price,  commenced 
this  action  before  a  justice  of  the  peace  in  Allen  county  against 
D.  W.  Stewart,  doing  business  under  the  firm  name  of  the 
People's  Telephone  Company,  to  recover  on  two  causes  of  ac- 
tion. The  first  was  on  an  account  due  from  Stewart  to  him- 
self. The  second  was  on  an  account  due  from  Stewart  to  Mrs. 
A.  Thompson.  The  latter  account  was  itemized,  verified,  and 
assigned  in  writing  to  Price.  The  assignment  was  regular  arid 
admitted.  To  this  second  cause  of  action  the  plaintiff  in  error 
answered  that  Price  was  not  the  owner  of  the  account,  and 
therefore  not  the  real  party  in  interest.     There  was  no  defense 


Sec.  1]  STEWART  V.  PRICE,  207 

to  the  aec'tniiit ;  uur  was  there  any  claim  that  it  had  been  as- 
signed for  the  purpose  of  acquiring  or  giving  the  court  juris- 
diction over  the  defendant,  when  it  otherwise  could  not  have 
acquired  such  jurisdiction.  The  Thompson  account  was  as- 
signed to  Price  that  he  might  join  it  with  his  own  in  axi  action 
he  contemplated  bringing  against  Stewart,  and  when  collected 
he  was  to  pay  Mrs.  Thompson  the  entire  proceeds  thereof.  ^Irs. 
Thompson  testified  that  all  money  due  on  said-  account  be- 
longed to  her;  that  Stewart  did  not  owe  her  anything;  that  it 
was  due  from  Price.  The  plaintiff  in  error  demurred  to  the 
evidence  as  to  the  second  cause  of  action  on  the  ground  that  it 
showed  the  plaintiff  was  not  the  owner  of  the  account,  and 
therefore  not  the  real  party  in  interest.  The  demurrer  was 
overruled,  and  judgment  n'ndered  in  favor  of  Price  on  both 
cau.ses  of  action. 

Thf  only  question  presented  for  our  consideration  is  whether 
Price  could  maintain  this  action  in  his  own  name  on  the  second 
cause  of  action,  (,'an  the  assignee  of  a  verified  itemized  account, 
a.ssigned  in  writini:.  where  the  assignment  is  regular  and  admit- 
ted, maintain  an  action  thereon  in  his  own  name,  when  by  a 
previous  arrangement  he  had  agreed  to  pay  the  procwds  col- 
lected to  his  assignor?  Our  Code  (section  "JO)  provides, 
"Every  action  nnist  be  prosecuted  in  the  name  of  the  real 
I»arty  in  interest  except  as  otherwise  provided  in  section  28."  It 
is  not  contended  by  either  party  that  the  case  falls  within  any  of 
the  exceptions.  It  must  therefore  be  considered  solely  with  ref- 
erence to  the  meaning  of  section  2»».  In  examining  this  section 
it  will  be  observed  that  it  does  not  .say  that  it  is  the  perwm  in 
whose  name  the  right  of  a«'tion  stands,  or  the  person  who  holds 
the  legaJ  title  thereof,  that  may  pros«M.-ute  the  action,  but  that 
"every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest."  If  Price  failed  to  recover  against  Stewart,  he 
would  not  be  liable  to  Mi-s.  Thompson.  The  loss  would  be 
wholly  that  of  Mrs.  Thompson.  Is  the  real  party  in  interest  the 
person  who  is  to  be  benefited  or  who  sustains  a  loss  by  the  re- 
sult, or  is  it  the  person  who  holds  the  legal  title  to  the  thing  in 
action?  This  section  is  plain  and  unambiguous,  and  seems  in- 
capable of  misunderstanding.  By  its  terms  it  excludes  the  idea 
that  any  person  other  than  the  one  benefited  or  injured  by  the 
result  of  the  litigation  can  be  intended.  To  hold  otherwise 
would  appear  to  be  doing  violence  to  language.     This  question 


208  PARTIES  TO  ACTIONS.  [ChaP.   II, 

was  before  the  supreme  court  of  Indiana  as  early  as  1858,  in 
the  case  of  Swift  v.  Ellsworth,  10  Ind.,  205,  71  Am.  Dec,  315, 
where  it  was  ruled  that  the  assignee  of  a  promissory  note,  who 
was  not  entitled  to  the  proceeds  when  collected,  was  not  the 
real  party  in  interest,  and  could  not  maintain  an  action  thereon. 
Again,  in  Bostwick  v.  Br>'ant,  113  Ind.,  448,  459  (16  N.  E.  378, 
383),  where  the  answer  pleaded  that  the  note  sued  on  was  trans- 
ferred and  assigned  to  plaintiff  by  Anna  S.  Bloomer,  the  owner, 
without  a  consideration,  and  solely  for  the  purpose  of  suing  on 
and  collecting  the  same  for  the  use  and  benefit  of  the  real 
owner,  the  same  court  says:  "The  answer  shows  clearly  that 
Anna  S.  Bloomer  is  the  owner  of  the  note,  and  the  real  party 
in  interest.  The  plain  provisions  of  the  statute  cannot  be 
avoided.  The  plea  must  be  held  good."  Without  exception, 
this  is  the  settled  rule  of  interpretation  of  this  provision  of  our 
Code  in  Indiana.  The  same  rule  has  been  followed  in  Nebraska 
in  the  case  of  Mills  v.  Murry,  1  Neb.,  327,  and  reaffirmed  in 
the  case  of  Hoagland  v.  Van  Etten,  22  Neb.,  681,  684  (35  N.  W. 
869,  870),  in  which  case  the  chief  justice  says:  **If  a  party 
having  no  interest  in  the  subject-matter  of  the  suit,  who  holds 
simply  as  assignee,  and  is  to  deliver  to  his  assignor  the  pro- 
ceeds of  the  action,  may  maintain  an  action  on  such  an  assign- 
ment, then  section  29  has  no  meaning  whatever.  We  do  not 
care  to  enter  into  a  discussion  of  the  propriety  or  impropriety 
of  requiring  actions  to  be  brought  in  the  name  of  the  real  party 
in  interest.  The  statute  contains  a  plain  provision,  which  this 
court  has  no  authority  to  disregard.  We  hold,  therefore,  that 
an  assignee  having  no  interest  in  the  result  of  the  suit,  and  not 
entitled  to  any  portion  of  the  proceeds  thereof,  is  not  entitled 
under  section  29  to  maintain  an  action  as  the  real  party  in  in- 
terest."  This  same  case  was  again  before  the  court  on  a  motion 
for  a  rehearing,  and  upon  reargument  the  court  adhered  to  its 
former  decision.  23  Neb.,  462  (36  N.  W.  755).  Perhaps  the 
fullest  and  most  able  presentation  of  this  question,  while  not 
the  law  of  that  state,  is  found  in  Eaton  v.  Alger,  57  Barb.,  179, 
189.  Plea  by  the  defendant  that  the  plaintiff  was  not  the  owner 
of  the  note,  and  not  the  real  party  in  interest.  The  court  says : 
* '  It  would,  therefore,  seem  very  clear  that  a  defendant,  on  such 
an  issue  made  by  the  pleadings,  would  have  the  right  to  show 
that  the  plaintiff  was  not  the  real  party  in  interest,  particular- 
ly if  he  had  pleaded  a  defense  in  the  action  good  as  against  such 


Sec.  1.]  STEWART  V.   PRICE.  209 

pretended  real  party.  The  plaintiffs,  however,  insist  that,  not- 
withstanding this  provision  of  the  code  (section  111),  the  in- 
dorsee of  a  note,  or  the  holder  of  a  note  payable  to  bearer  or  in- 
dorser  in  blank,  may  maintain  an  action  upon  it,  althoudi  not 
in  fact  the  owner,  nor,  as  between  himself  and  the  owner,  en- 
titled to  the  proceeds  when  collected.  That  such  was  the  rule 
before  the  code  is  conceded,  and  the  argument  is  that  it  was 
abolished  by  the  code;  that  the  codifiers  and  legislature  so  in- 
tended. In  their  report  to  the  legislature  the  codifiers  said : 
'The  rules  respecting  parties  in  the  courts  of  law  differ  from 
those  in  the  courts  of  e(iuity.  The  blending  of  the  jurisdiction 
makes  it  neces.sary  to  revise  those  rules  to  some  extent.  In 
doing  so,  we  have  had  a  threefold  purpose  in  view:  (1)  To  do 
away  with  the  artificial  distinctions  existing  in  the  courts  of 
law,  and  to  require  the  real  party  in  interest  to  appear  in  court 
as  such;  (2)  to  require  the  presence  of  such  parties  as  are 
neces.sary  to  make  an  end  to  the  controversy;  and  (3)  to  allow 
otherwise  great  latitude  in  respect  to  the  number  of  parties  who 
may  be  brought  in.  *  *  *  The  true  rule  undoul 
that  which  prevails  in  the  courts  of  equity — that  hi 
the  right  is  the  person  to  pursue  the  remedy.  We  have  adopted 
that  rule.'  This  section  (now  111)  was  adopted  by  the  legis- 
lature precisely  as  submitted  by  the  codifiers,  showing  that  they 
approved  the  reasons  given  by  the  codifiers  for  its  adoption. 
It  i.s,  therefore,  quite  immaterial  what  was  the  rule  previous  to 
the  code,  if  thereby  the  legishiture  intended  to  and  did  change 
the  rule  by  express  enactment.  That  they  did  so  we  think  clear, 
from  the  language  of  the  statute  and  the  rea.sons  for  its  adop- 
tion. In  their  reasoning  the  codifiers  alluded  to  the  existing 
rules  and  the  necessity  for  a  revision;  one  purpose  of  the  pro- 
posed change  being  to  require  the  real  persfm  in  interest  to  ap- 
pear in  court  as  such,  followed  by  an  act  providing  that  'every 
action  must  be  prosecuted  in  the  name  of  the  real  party  in  inter- 
est.' This  reasoning  and  this  enactment  seem  too  plain  for  mis- 
conception. The  act  is  emphatic.  It  uses  the  Saxon  word 
'must'  (a  verb  which  has  not  yet  been  twisted  by  judicial  con- 
struction, like  the  words  'may'  and  'shall,'  into  moaning  some- 
thing else)  to  place  beyond  doubt  or  cavil  what  it  intended." 
"We  heartily  coincide  with  the  reasoning  and  in  the  conclusion 
reached  in  the  foregoing  cases.  "We  believe  this  is  the  true  mean- 
ing of  this  section,  as  applied  to  actions  on  assigned  accounts, 
14 


L»ariies  wuo 
)ubtedly    isll 
le  who  has  1 1 


210 


PARTIES   TO   ACTIONS,  [CUAP.   II. 


and  so  obviously  plain  as  to  admit  of  no  other  interpretation  or 
construction.  Therefore  the  decision  of  Krapp  v.  Eldridge,  33 
Kan.,  106  (5  Pae.  372),  in  so  far  as  it  expresses  a  doctrine  con- 
trary hereto,  is  overruled. 

This  cause  is  reversed  and  remanded,  with  instructions  to 
sustain  the  demurrer  to  the  evidence  of  the  plaintiff  to  the 
second  cause  of  action.* 


McARTHUR  v.  GREEN  BAY  CANAL  CO. 
34  Wis.,  139.    [187 i.] 

While  a  tug-boat  was  towing  the  plaintiff's  barge  through  the 
defendant's  canal,  a  part  of  the  embankment  washed  out,  caus- 
ing the  barge  to  run  aground  and  the  tug-boat  to  be  detained. 

The  owner  of  the  tug  assigned  his  right  of  action  to  the  plain- 
tiff, who  brought  a  suit  to  recover  damages  for  the  injuries  to 
the  barge  and  the  detention  of  the  tug.  After  the  affirmance  of 
a  judgment  in  favor  of  the  plaintiff',  the  defendant  filed  a 
motion  for  a  rehearing. 

(On  the  motion  for  a  rehearing.) 

Lyon,  J.:  We  have  carefully  considered  the  very  earnest 
argument  of  the  learned  counsel  for  the  defendant  in  support 
of  the  motion  for  a  rehearing,  and  have  endeavored  fully  to 
review  the  grounds  of  our  former  decision  of  the  case,  but  we 
are  entirely  unable  to  perceive  anything  in  the  case  which 
forces  upon  us  the  alternative  of  receding  from  our  former 
views  and  reversing  the  judgment  of  the  circuit  court,  or  giving 
up  (to  use  the  language  of  the  learned  counsel,  and  their  italics 
also),  "the  pretense  of  administering  impartial  justice." 
Neither  does  our  re-examination  of  the  case  lead  us  to  believe,  or 
even  suspect,  that  we  have  attempted  to  evade  any  difficulty  in 
the  way  of  an  affirmance  of  such  judgment.  We  thought  when 
the  former  decision  was  announced,  and  still  think  that  the 
opinion  heretofore  filed,  fairly  stated  and  discussed  the  material 
'  questions  raised  on  the  original  argument  of  the  case,  and  that 
the  principles  which  controlled  our  decision  were  sound  legal 
principles,  and  properly  applicable  to  the  case.     Entertaining 

*Concurring   opinions   of   Foster   and   Pollock,   JJ.,    and   dissenting 
opinion  of  Greene,  J.,  omitted. 


Sf.C.  1.]  M  ARTHUR    V.    GREEN    BAY    CANAL    CO.  211 

these  views,  we  do  not  see  any  necessity  for  further  discussion 
of  the  same  questions. 

The  question  whether  the  claim  for  damages  for  the  detention 
of  the  tuo;  is  assij^nable,  so  that  the  plaintiff,  who  is  the  assijrnee 
of  such  claim,  may  entertain  an  action  thereon  in  his  own  name, 
has  not  been  determined,  for  reasons  stated  in  the  former 
<)[)inion.  The  learned  counsel  for  the  defendant  now  inform  us 
that  they  did  not  intend  to  waive  their  objection  to  the  right 
of  the  plaintiff  to  recover  such  damages,  and  call  upon  us  to 
determine  the  question  on  this  motion ;  but,  unfortunately  for 
us,  they  have  not  favored  us  with  any  argument  or  citation  of 
authorities  on  the  question.    Still  it  is  our  duty  to  determine  it. 

The  action  i.s  to  recover  damages  for  injuries  to  personal 
property,  caused  by  the  negligence  of  the  defendant.  It  does 
not  arise  out  of  a  contract,  but  sounds  in  tort.  Beyond  all 
question,  a  right  of  action  for  injuries  to,  or  the  conversion  of, 
personal  property,  while  not  assignable  at  the  common  law,  is 
a.ssignable  in  equity,  unless  that  cpiality  is  taken  away  by  sec! 
12.  eh.  122,  K.  S.,  which  is  as  follows:  "Every  action  must  be 
j)i'Dsecuted  in  the  name  of  the  real  party  in  interest,  except  as 
otherwise  provided  in  section  fourteen;  but  this  section  shall 
not  be  deemed  to  authorize  the  a-ssi<:nment  of  a  thing  in  action 
not  arising  out  of  a  contract."  (Tay.  Stats.,  1418,  §12.)  The 
(>.xception  mentioned  has  no  relation  to  this  action.  The  above 
jirovision  is  contained  in  the  New  York  code  of  procedure ;  and 
it  has  been  held  by  the  courts  of  that  state  in  several  cases  that 
the  la.st  clause  of  the  section  does  not  prohibit  the  assignment 
of  a  thing  in  action  which  was  a.ssignable  in  equity  before  the 
code  was  enacted,  but  only  relates  to  or  precludes  the  assign- 
ment of  those  choses  in  action  for  personal  torts  which  die  witli 
the  party  and  which  never  were  a.ssignable  either  in  law  or  in 
efjuity.  Hence  those  cases  hold  that  the  assignee  of  a  thing 
action  not  arising  out  of  a  contract  may  maintain  an  act 
thereon  in  his  own  name,  in  all  cases  where  the  cause  of  act 
is  assignable  in  equity.  Some  of  the  ca.ses  hold,  or  strongly  in- 
timate, that  survivorsliip  is  the  test  of  assignability — that  is  t(» 
say,  that  every  chose  in  action  which  survives  to  the  personal 
representative  of  the  party,  is  assignable  in  equity,  and  may  be 
sued  upon  in  the  name  of  the  assignee.  But  whether  this  be  the 
true  test  or  not,  we  think  the  New  York  courts  have  given  the 


r  HI 
g  in! 
lion/ 
tionj 


212 


PARTIES  TO   ACTIONS.  [ChaP.    II. 


Statute  a  sound  interpretation  in  respect  to  the  assignability  of 
claims  for  damages  for  injuries  to  property. 

The  following  are  some  of  the  authorities  which  sustain  the 
principles  above  quoted:  The  People  ex  rel  Stanton  v.  Tioga 
C.  P.,  19  Wend.  73;  McKee  v.  Judd,  12  N.  Y.,  622;  Waldron  v. 
Willard,  17  id.,  466;  Merril  v.  Grinnell,  30  id.,  594;  Fulton 
Fire  Ins.  Co.  v.  Baldwin,  37  id.,  648 ;  Butler  v.  N.  Y.  &  Erie 
R.  R.  Co.,  22  Barb.,  110;  Dininny  v.  Fay,  38  id.,  18;  1  Chitty's 
PL,  69.  These  authorities  are  cited  in  the  brief  of  counsel  for 
the  plaintiff.  See  also  R.  S.,  ch.  135,  sec.  2,  as  to  survival  of 
actions,  and  Noonan  v.  Orton,  decided  at  the  present  term. 

It  must  be  held  that  the  action  to  recover  damages  for  the  de- 
tention of  the  tug  was  properly  brought  in  the  name  of  the 

plaintiff.  .   ^  „ 

Motion  denied. 


Section  2.     Joinder  of  Plaintiffs. 

Code  Provisions.  ''All  persons  having  an  interest  in  the 
subject  of  the  action,  and  in  obtaining  the  judgment  demanded, 
may  be  joined  as  plaintiffs,  except  as  otherwise  expressly  pre- 
scribed in  this  act."— iV.  Y.  Code  Civ.  Proc,  %446. 

"Of  the  parties  to  the  action,  those  who  are  united  in  inter- 
est must  be  joined  as  plaintiffs  or  defendants,  except  as  other- 
wise expressly  prescribed  in  this  act.  But  if  the  consent  of 
any  one,  who  ought  to  be  joined  as  a  plaintiff,  cannot  be  ob- 
tained, he  may  be  made  a  defendant,  the  reason  therefor  being 
stated  in  the  complaint.  And  where  the  question  is  one  of  a 
common  or  general  interest  of  many  persons,  or  where  the  per- 
sons, who  might  be  made  parties,  are  very  numerous,  and  it 
may  be  impracticable  to  bring  them  all  before  the  court,  one 
or  more  may  sue  or  defend  for  the  benefit  of  all. ' ' — N.  Y.  Code 
Civ.  Proc,  §  448. 

"All  persons  having  an  interest  in  the  subject  of  the  action, 
and  in  obtaining  the  relief  demanded,  may  be  joined  as  plain- 
tiffs, except  as  otherwise  provided  in  this  article." — Mo.  B.  S. 
1899,  Sec.  542. 

"Parties  who  are  united  in  interests  must  be  joined  as  plain- 
tiffs or  defendants;  but  if  the  consent  of  any  one  who  should 


♦See  also  Snyder  v.  Ry.,  86  Mo.,  615. 


;5eC.  2.]  GATES  V.  BOOMER,  213 

be  joined  as  plaintiff  cannot  be  obtained,  he  may  be  made  a 
defendant,  the  reason  thereof  being  stated  in  the  petition.  This 
section  shall  apply  to  both  actions  at  law  and  suits  in  equity." 
—Mo.  R.  S.  1899,  Sec.  544. 

(a)     Parties  Who  May  Join. 

GATES  V.  BOOMER. 

17  Wis.,  470.      [1863.] 

By  the  Court,  Cole,  J. :  The  first  objection  taken  to  the  com-  ^^^^^^^^.^^^^.^.^jc 
plaint  on  the  demurrer  is,  that  the  court  has  no  jurisdiction  of  (T^^t^''^^^ 
the  cause.  The  complaint  is  filed  by  two  .ludgment  creditors  ot  ^  x.^,^^  ^ 
Lyman  E.  Boomer,  for  the  purpose  of  setting  aside  and  having  .Jlji^*^  &jj^ 
declared  void  a  deed  given  to  him  by  his  co-defendant,  on  the  juA>ii>^  jvj^^:. 
ground  that  it  is  fraudulent  and  void  as  to  creditors.  They  '';;|^;;^^^^3fcii!!^ 
state   that   their   judgments   were   obtained   subsequent  to   the  ^^-"st^n/^^ 

giving  of  said  deed ;  that  executions  have  been  issued  upon  them, 
and  returned  unsatisfied;  and  that  the  judgment  debtor  has  left 
the  state  and  has  no  property  here  liable  to  seizure  and  sale. 
They  therefore  ask  that  the  deed,  which  is  an  obstruction,  be 
removed  so  that  they  can  enforce  their  liens  by  a  sale  of  the 
propei-ty  upon  execution.  This  general  statement  will  suffice  to 
understand  the  object  of  the  suit. 

We  think  the  facts  stated  in  the  complaint  bring  the  case  ^^^^^^^  ,,^^,,^ 
within  an  acknowledged  head  of  equity  jurisdiction.  As  al-  y^^^^^_^  <:>-  t^ 
ready  observed,  the  object  and  purpose  of  the  suit  is  to  clear  aj^..,,Ki>^  -<  <i-i- 
the  real  estate  of  the  judgment  debtor  from  an  incumbrance -jj^^>.,,.>X-  A>-e^ 
fraudulently  and  improperly  placed  upon  it  to  the  injury  and  <^^  o-<5i«^  ^ 
prejudice  of  the  creditors.  It  is  said,  if  the  deed  be  void  in  s^-^^-^-t^^ 
respect  to  creditors,  as  is  alleged,  that  then  this  suit  is  unneces-  '■^'*"^^^-*'^-''-'^^^^ 
sary,  since  there  is  no  obstacle  to  the  respondents  enforcing  ?^^^2;2^' 
their  judgments  by  sales  upon  execution.  But  if  the  Parties  .^^^^-^^^^^^^j^^ -^ 
should  adopt  the  course  suggested,  still  it  is  very  obvious  that  x^^^^^^:^^^^^^  -^Ay 
the  existence  of  the  deed  would  throw  doubt  and  uncertainty  ^^^^^^^''''^jr  . 
upon  the  title  and  might  prevent  bidding  entirely  at  the  sales,  j^::-*^ .  (Svv* 

It  is  further  objected  that  there  is  a  defect  of  parties  plain-  f^>^^.  •»  ^3'-i.«->- 
tiffs,  and  that  it  was  irregular  for  the  two  judgment  creditors  ^^^r^*-^^^  ^^^ 
to  unite  in  the  action.  This  point  is  clearly  untenable.  Both  .^'"^j^TlT*^ 
plaintiff's  have  a  common  interest  in  removing  the  fraudulent  ^^^^c^^,,,^  „^^ 
conveyance,  so  that  they  can  enforce  their  respective  judgments,  ^fcj:^^   -a^«VP>J. 

V 


214 


PARTIES  TO  ACTIONS. 


[Chap.  II. 


And  aside  from  our  statute  we  think  there  would  have  been  no 
misjoinder  of  parties  plaintiffs.  See  case  in  3  Paige,  supra, 
(Clarkson  v.  Depeyster,  3  Paige,  320),  and  authorities  there 
referred  to.  But  our  statute  provides  that  all  persons  having- 
an  interest  in  the  subject  of  the  action  and  in  obtaining  the 
relief  demanded,  may  be  joined  as  plaintiffs,  with  certain  ex- 1 
ceptions  not  applying  to  this  case.  Sec.  18,  ch.  122.  This  pro- 
vision is  unquestionably  broad  enough  to  meet  the  case  at  bar, 
since  both  plaintiffs  have  a  direct  and  common  interest  in  the 
subject  matter  of  the  suit  and  in  the  relief  sought.  The  third 
objection,  to-wit,  that  several  causes  of  action  are  improperly 
united  in  the  complaint,  is  disposed  of  in  considering  the  ques- 
tion whether  or  not  there  was  an  improper  joinder  of  the 
parties  plaintiffs. 

The  next  objection,  that  the  several  causes  of  action  are  not 
separately  stated,  is  not  sustained  by  the  complaint,  as  an  ex- 
amination of  its  various  allegations  will  abundantly  show.  *  *  * 

Judgment   affirmed. 


\yy-  ^CXo— 


GRAY  V.  ROTHSCHILD. 

112  N.  Y.,  668.    [1889.] 

Action  by  Bryce  Gray  and  others  against  Maier  Rothschild 

L*,^,^.  ojsjl     and   others.     Plaintiffs   consist  of  seven   different  firms,   who 

r^ju^^^As^         severally,  at  different  times,  sold  goods  to  defendants  Charles 

AiXfe^  '^      M.  and  Jacob  M.  Rothschild,  partners,  composing  the  firm  of 

^.^  ^>-<-^  Charles  M.  Rothschild  &  Co.,  and  they  allege  that  the  goods 

j^^  .w>^*Su<*Aj^^vere  obtained  by  means  of  false  representations,  and  that  the 

f^s^^^-o^-^-^^^   purchasers,  together  with  the  two  other  defendants,  Maier  and 

^'"^^'^"""t^^^^^  Abraham  Rothschild,  entered  into  a  conspiracy  by  which  these 

'^"^^^"'"^^'^^"^  goods  and  others  were  to  be  purchased  on  credit,  and  Charles 

'-^^^  "^^    M.  Rothschild  &  Co.  were  to  defraud  the  sellers  of  the  prices 

^  |j^,^AA,A-^y  removing,  secreting,  and  disposing  of  the  goods,  and  that 

f^"  such  conspiracy  was  carried  into  execution.     The  action  was 

for  the  recovery  of  damages  amounting  to  the  aggregate  sum 

owing  for  such  goods  to  the  several  plaintiff  firms. 

In  the  action  by  John  T.  Sherman  and  others  against  the 
same  defendants  the  complaint  is  substantially  the  same,  ex- 
cept  that  plaintiffs    obtained   judgments   by   confession   from 


Sec.  2.j  grav  v.  rothschild.  215 

Charles  ]M.  and  Jacob  ^I.  Rothschild,  and  then  commencedntliis 
common  action  for  damages  sustained  by  the  sale  and  delivery 
of  goods  to  Charles  M.  Rothschild  &  Co.  Fourteen  different 
sales  are  alleged  in  the  complaint,  upon  each  of  which  the  pur- 
chasers confessed  judgments  to  the  respective  sellers,  who  con- 
sist of  eleven  iSrms  and  three  individuals. 

Demurrers  to  the  complaint  for  misjoinder  of  parties  plain- 
tiff, and  for  improperly  uniting  causes  of  action,  were  sustained 
by  the  special  and  general  terms,  and  plaintiffs  in  each  case 
appeal. 

Danforth,  J. :  U  may  very  well  be  that  each  plaintiff'  has  "yv>  <ocr>'v«^ws 
a  good  cause  of  action  against  the  defendants,  but  the  plaintiff's  <-«>-^--v*.  71  o-, 
have  none  common  10  all,  or  jonitly  with  each  other.  Each  in-  •^->-*>^>-^^  <^  ' 
dividual  and  each  firm  may  have  been  defrauded  by  similar,  ^""^^^^^  f^"*^ 
although  not  the  same,  representations;  but  the  complaint  shows  ^'^-*-''^-  ^^ 
that  each  has  suffered  separately,  and  its  whole  scope  and  mean-  ^\  *^  "^ 
ing  is  inconsistent  with  the  idea  that  the  plaintiff's,  or  any  two  -cKa^^ 

or  more  of  them,  are  jointly  prejudiced.  As  the  objection  ap-  i^  ;./vN<^<yN/v^ 
pears  upon  the  face  of  the  complaint,  the  demurrer  was  well  ^^'"^-^--^^  i\  -^ 
taken.  "^  ^^'^-•.-'vr^ 

The  judgment  should  be  affirmed.*  <^^  ^^jA  --y/^^^j^.*^ 


YOUNKIN   v.   MILWAUKEE    TRACTION   COMPANY. 
112  Wis.,  15.  [1901.] 

Action  by  Younkin  and  others,  abutting  property  owners, 
against  the  Milwaukee  Traction  Company  to  restrain  the  oper-  ^'^^TF^^Tlx^^ 
ations  of  a  double  track  street  car  line  and  for  damages  to  the  T^^^^^»^)  ^ 
property.  On  appeal  by  defendant  from  an  order  overruling  ojv^^^  «n^jav-< 
its  demurrer  to  complaint.  'i  ^^»-~  AA.-J^* 

Cassoday,  C.  J. :  There  can  be  no  question  but  what,  in  the  ^*'^^"^vi 
absence  of  any  statute  for  condemnation,  the  abutting  owners 
in  such  a  case  may  resort  to  the  ordinary  actions  at  law  or  in 
equity.  Davis  v.  Railroad  Company,  12  Wis.,  16;  Ford  v. 
Railroad  Company,  14  Wis.,  609;  80  Am.  Dec,  791;  Powers  v. 
Bears,  12  Wis.,  214,  78  Am.  Dec,  733;  Shepherdson  v.  R.  R. 
Co.,  6  WLs.,  605.    The  principal  object  of  this  action  is  to  abate 


•Levering  v.  Schnell,  78  Mo.,  167,  accord. 


216  PARTIES  TO   ACTIONS.  [ChAP.    1 1. 

,;^„5:*ibSbu.  such  nuisance,  common  to  all  the  plaintiffs,  and  to  restrain  the 
defendant  from  further  erecting  any  such  obstructions  upon, 
or  in  any  manner  interfering  with,  the  lands  of  the  plaintiffs 
or  any  of  them.  It  is  well  settled  in  this  state  that  "where' 
the  erection  of  a  nuisance  will  cause  private  and  special  dam- 
'=\r^J*-^5^*^-  age  to  each  of  several  persons,  they  have  a  common  right  to 
■^*'^-^'-*^''^^^  prevent  its  erection,  and  may  join  as  complainants  in  a  bill 
''^^  ""^^^  for  that  purpose,  or  to  abate  it  after  it  is  erected."  Barnes 
V.  City  of  Racine,  4  Wis.,  454;  Pettibone  v.  Hamilton,  40  Wis., 
415,  416;  Kaukauna  Water  Power  Company  v.  Green  Bay  & 
^Milwaukee  Canal  Company,  75  Wis.,  385,  392  (44  N.  W.  638)  ; 
^"^^-^'^Grand  Rapids  Water  Power  Company  v.  Bensley,  75  Wis.,  399, 
**^'^^-'^  402,  403  (44  N.  W.  640;  Linden  Land  Co.  v.  Milwaukee  Elec- 
X^/^  ''"^^tric'R.  R.  &  Light  Co.,  107  Wis.,  507,  508  (83  N.  W.  851).  To 
S:  iUa^o^  the  same  effect  are  the  decisions  in  other  states.  Reid  v.  Gifford, 
-^^^o^Njo--  1  Hopk.,  Ch.  416;  Murray  v.  Hay,  1  Barb.,  Ch.  59,  43  Am. 
:rw^wE--<^Dec.  773;  Id.,  4  Sandf.,  Ch.  362;  Brady  v.  Weeks,  3  Barb.,  157; 
^^^-e^^--*^.  Strobel  v.  Salt  Co.,  164  N.  Y.,  323  (58  N.  E.  142),  51  L.  R.  A. 
^»^  *^  **^^"^687,  79  Am.  St.  Rep.  643;  Rowbotham  v.  Jones,  47  N.  J.  Eq. 
^^•^"^^^  337  (20  Atl.  731)  ;  19  L.  R.  A.  663.  Thus,  in  the  last  case 
^-*^*^^"^^  ^cited,  it  is  held  that  "a  nuisance  is  common  to  several  com- 
plainants, when  it  affects  all  of  them,  not  precisely  at  the  same 
{  instant  and  in  the  same  degree,  but  at  the  same  period  of  time 
and  in  a  similar  way,  so  that  the  same  relief  may  be  had  in  the 
Jc  ^iifdijAA^^^^^'  whether  there  be  one,  two,  or  a  dozen  plaintiffs."  Had 
...,t.^jty.,.^.txAtjJ^  the  defendant  turned  a  stream  of  water  upon  Lincoln  avenue, 
^ -O'^vi.  o>rAj>  so  as  to  flow  along  the  same,  and  over  the  lands  of  the  re- 
L9  o-^a^cm^  spective  plaintiffs  as  abutting  owners  thereon,  there  would  be 
^,>3A^y>o63r  no  question  about  the  right  of  the  plaintiff's  to  join  in  an  action 
».jiUjw^3Ait  to  restrain  such  use  of  the  street  and  to  abate  such  nuisance. 
ir»^s»w  I  OA^^^^j.  The  construction  of  the  railway  in  the  manner  described  is 
^v>»  •vA.-o  equally  unlawful.  In  the  Telephone  case,  this  court  recently 
^^^^^^^fy^^^  ^^eld  that  "the  erection  and  maintenance  of  a  telephone  pole  in 
tdk*.A_«  ^^Tthe  street  in  front  of  the  show  window  of  a  store  building,  in- 
^_^c,t>Afe  terfering  with  the  proper  use  and  enjoyment  of  the  property, 
k,  "jSAaA^X^  is  a  continuing  trespass  upon  the  land,  and  a  nuisance,  which 
, ^rsA.>.SLe  a  court  of  equity  will  abate."  Krueger  v.  Telephone  Co.,  106 
s^^^^pJ^^^  Wis.,  97  (81  N.  W.  1041,  50  L.  R.  A.  298).  We  must  hold 
-^■s^-^ .  that  the  jplaintiffs  have   a  common  right  of  action,  and  that 

the  complaint  states  facts  sufficient  to  constitute  a  good  cause 
of  action  for  such  injunction  and  to  abate  such  nuisance. 


\x     ■<X    -X*-e^-A-     V>-»-*-/o~-      cv  <i.-«^.ro_ft    ,/^ 


flEC.  2.]  YOUNKIN  V.   MILW.  TRACTION  CO.  217 

The  other  ground  of  demurrer  is  that  several  causes  of  action    ^  f^.a>ey,3- 
have   been    improperly    united.      As   indicated,    the    respective     ^^^^^^^  ^^ 
plaintiffs  own  29  different  lots  in  severalty,  abuttin§r  on  Lin-  ^^^^^^^^^  c^.^ 
coin   avenue.     One  has  a  frontage  of  only  38  feet  and  four  .y,^   yv...,^^ 
inches,  and  another  of  157  feet  and  four  inches,  and  the  others  ,f^  ^^^^  CUs-Su 
ranging   between.     The   complaint    alleges   that   the    plaintiffs     ^^5J^j.^rXy^ ,^ 
have  already  sustained  damages  in  the  sum  of  $5,000,  and  de-     ^^^  c.  ^r>AKi3j 
raands  judgment  in  favor  of  the  plaintiffs,  for  that  amount  for    ^  ^^.^.^  ;^*^ 
past  damages.     Obviously  the   amount  of  the  damages  to  the    Sl,^,^  >-!^ 
respective  lots  must  differ  more  or  less,  depending  upon  the    vi^  .^^^  v^WXi> 
amount  of  frontage,  the  location,  surface,  and  the  nature  of   ^^^^^^  ^^  ..^^ 
the  ground,  etc.    To  a.scertain  such  damages  with  any  degree  of    ^,^^^^^^^„^^„}s^^  ^ 
certainty  would  necessarily  require  a  separate  trial  as  to  sev-    j^^^^^pCs^^tX. 
eral,  if  not  all,  of  the  lots  in  question.     In  one  of  the  cases  in  .y^,^^^^  t^^o.. 
this' court,  brought  by  several  plaintiff's  to  restrain  the  diver-  jj^^,^^^,,;jc*JAv. 
sion  of  water,  cited  abovp,  it  was  contended  that  several  causes  ;s>:*^vA^  .  Irv^ 
of  action  were  improperly  united.    Grand  Rapids  Water  Power   ^^   \-r^ 
Company  v.  Bensley,  75  Wis.,  401  {U  N.  W.  641).    Mr.  Justice    <y^^.^  ^\ 
Taylor   speaking  for  the  court  in  that  case,  said:    "It  is  clear  <>rwvX.  ^^ 
there  would  be  a  misjoinder  of  causes  of  action  if  the  plain-    --X^  v^^ 
tiffs  sought  anv  relief  for  the  mere  injury  to  the  soil  and  free- 
hold of  the  plJintirt*,  the  Grand  Rapids  Water  Power  Company. 
No  such  relief  is,  however,  sought  by  the  plaintiffs  or  prayed 
for  by  them  in  the  complaint.     *     *     *     The  only  relief  prayed 
for  is  a  perpetual  injunction   restraining  the  defendant  from 
diverting  the  water  of  said  river  from  its  accustomed  flow  to 
the  plaintiff's  mills  and  water  powers.    No  damages  are  claimed 
for  the  injury  done  to  the  soil  and  freehold  of  the  Grand  Rapids 
Water   Power    Company.       There    is,    therefore,    no    improper 
joinder  of  causes  of  action."     It  is  stated  by  a  distinguished 
author  on  such  subjects  that  ''where  several  persons  are   in-t 
jured  Iwg^  common  nuisance,  although  varying  in  degree,  butl 
fc^i^^aT^mmon  eft'ect^ev  mav  join  in  a  bill  for  an  m.lunc-\ 
Ti^r^ut  there_canJ}iLJi^rnYPry  of  damages."    2  Wood,  Xuls. 
(3d'ed  )  "p""ll60r§  791.     As  the  result  of  an  able  opinion  by 
Chancellor  Walworth  in  one  of  the  cases  cited  and  followed 
by  Chief  Justice  Whiton  in  Barnes  v.  City  of  Racine,  supra,  it 
was  held   that  "there   is  no   inflexible   rule   as  to  joinder  of 
parties  in  the  court  of  chancery.     Yet,  as  a  general  principle,  \ 
several   complainants,  having  distinct  and  independent  claims 
to  relief  a-ainst  a  defendant,  cannot  join  in  a  suit  for  the  sepa- 


218  PARTIES  TO   ACTIONS.  [ClIAl*.    II. 

rate  relief  of  eaey  Nor  can  a  single  complainant,  having  dis- 
tinct and  independent  claims  to  relief  against  two  or  more  de- 
fendants severally,  join  them  in  the  same  bill.  But  there  arc 
many  exceptions  to  this  rule,  and  the  court  exercises  a  sound 
discretion  in  determining  whether  there  is  a  misjoinder  of 
parties  under  the  particular  circumstances  of  each  case." 
Murray  v.  Hay,  1  Barb.,  Ch.  59,  43  Am.  Dec.  773.  In  that  case 
past  damages  to  the  respective  complainants  by  reason  of  the 
alleged  nuisance  was  prayed,  and  objection  to  the  bill  was  made 
on  that  ground  and  sustained.  The  court  refused  to  allow  the 
bill  to  be  amended  by  striking  out  the  name  of  one  of  the  com- 
plainants, but  allowing  it  to  be  amended  by  striking  out  the 
claim  for  such  damages.  Page  65,  ,1  Barb.  Ch.,  and  page  77, 
43  Am.  Dec.  The  same  rule  has  been  sanctioned  in  more  recent 
eases  in  that  state.  Brady  v.  Weeks,  3  Barb.,  157,  160;  Lynch 
V.  R.  R.  Co.,  129  N.  Y.,  286  (29  N.  E.  315),  15  L.  R.  A.  287, 
26  Am.  St.  Rep.  523.  The  same  rule  is  sanctioned  in  a  long 
line  of  cases  in  New  Jersey,  in  the  first  of  which  it  was  held 
that  "the  court  will  not  permit  several  plaintiffs  to  damand 
by  one  bill  several  matters  perfectly  distinct  and  unconnected 
against  one  defendant,  nor  one  plaintiff  to  demand  several  mat- 
ters of  distinct  natures  against  several  defendants"  Marselis 
V.  Banking  Company,  1  N.  J.  Eq.  31;  Davidson  v.  Isham,  9 
N.  J.  Eq.  186;  Hinchman  v.  R.  R.  Co.,  17  N.  J.  Eq.  75,  86  Am. 
Dec.  252 ;  R.  R.  Co.  v.  Prudden,  20  N.  J.  Eq.  530 ;  Demarest  v. 
Hardham,  34  N.  J.  Eq.  469;  Rowbotham  v.  Jones,  supra.  Sev- 
eral of  these  cases  are  street  railway  cases.  We  must  hold  that 
the  second  ground  of  demurrer  was  improperly  overruled. 

The  order  of  the  circuit  court  is  reversed,  and  the  cause  is 
remanded  with  directions  to  overrule  the  first  ground  of  de- 
murrer, and  sustain  the  second  ground  of  demurrer,  and  for 
further  proceedings  according  to  law.      q  ^     . 


BORT  V.  YAW. 
46  la.,  323.     [1877.] 

These  plaintiffs  allege  that  they  bought  of  the  defendant 
two  promissory  notes,  one  for  the  sum  of  $240.00,  executed  by 
James  Evart,  and  one  for  $51.97,  executed  by  Eden  R.  Latta; 
that  the  defendant,  willfully  and  fradulently  to  cheat  and  de- 


Sec.  2.]  bort  v.  yaw.  219 

fraud  plaintiffs,  represented  that  the  makers  of  the  notes  were 
perfectly  responsible;  that  the  representations  were  false,  the 
makers  at  the  time  being  insolvent;  that  plaintiffs,  by  reason 
of  said  false  representations,  were  induced  to  purchase  the 
notes.  A  writ  of  attachment  was  sued  out  and  levied  upon  the 
property  of  defendant.  The  evidence  being  introduced,  the 
court  upon  motion  of  defendant  dissolved  the  attachment,  for 
the  reason  that  no  order  therefor  was  made  by  a  judge  of  court. 
The  court  also,  on  motion,  dismissed  the  cause,  for  the  reason 
that  there  is  a  misjoinder  of  parties  plaintiff.  The  court, 
thereupon,  rendered  judgment  against  plaintiff's  for  costs.  The 
phiiutiffs  appeal. 

Day,  Ch.  J.:     The  evidence  shows  the  following  facts:     At    95-«>>'^^^^' 
the  time  of  the  transaction  complained  of  Yaw  owed  Baldwin    v>*.».,j.  w-tV^-oi. 
for  a  couple  of  colts,  and  was  negotiating  for  the  purchase  of  a^^   -^^i-o^c^^  vAr«» 
colt  from  Baldwin  and  also  for  the  purchase  of  one  from  the  '^^'^^^^^TTsJ^rT^ 
nhiintiff  Bort.     lie  proposed  to  turn  over  the  Evart  note  for  ^""^  ^ 

'  T3b-    5»-«»-<>/^    AX. 

the  colts  and  what  he  owed  Baldwin.     Whilst  the  negotiation  -^^^^X^    L 

was  pending,  Bort  proposed  to  sell  to  defendant  a  piano  for  ,,^^^,^^^^  \XjJ 
$200,  and  defendant  offered  him  the  balance  of  the  Evart  note,  V)-v  ^\.  ^  Va 
the  Latta  note,  and  his  own  note  for  $91.00.  This  proposition  \^,.,o.^,_.A/*W*J 
was  accepted.  The  plaintiff",  Baldwin,  for  his  colt  and  what  de-  \'>rv--^a4Aa^'^'>>«*^ 
fendant  already  owed  him,  obtained  a  part  interest  in  the  Evart  /"^^^^^^-"^  ^\  ^ 
note.  The  plaintiff',  Bort,  for  hLs  colt  and  piano,  obtained  the  Y  rlX■^x.^-^A>5^ 
balance  of  the  Evart  note,  the  Latta  note,  and  the  note  of  de-  \^:»-^*a.  t>»-  rvx 
fendant.  The  trades  were  made  at  the  same  time,  but  they  U''J->>-^^  b^^r^ 
were  wholly  distinct.  Bort  had  no  interest  in  Baldwin's  trade  /r^f^  /^^ 
and  Baldwin  had  no  interest  in  Bort's  trade.  V-^o-^.'-^- 

It  was  during  these  trades  that  the  false  and  fraudulent  rep- 
resentations complained  of,  as  to  the  solvency  of  the  makers  of     -^^x^,^^^  oww 
the  notes,  were  made.  «^»v*l  X>ii>- 

This  action,  it  must  be  observed,  js_npt  brought  upon  either^  -^!>»-ocx:V>a^ 
of  the  notes,  but  is  brought  to  recover  damages  sustained  by  (  Ji^  ,»,>>.. 
the  fraudulent  representations,  whereby  plaintiffs  were  in-  /  .-vvlsi^  A*J^ 
duced  to  part  with  their  property.  There  is  no  pretense  that  /  ,3>/v  l^ 
>-ither  plaintiff'  had  an}-  interest  in  the  property  of  the  other. 
The  false  representations  gave  each  a  right  to  an  action  for 
the  damages  he  sustained,  but  did  not  give  them  any  right  to 
maintain  a  joint  action.  The  damages  were  just  as  distinct 
as  tho.se  arising  from  slanderous  words,  at  the  same  time  spoken 
of  two  persons.     See  Hinkle  v.  Davenport,  38  Iowa,  355.     We 


220  PARTIES  TO  ACTIONS.  [CilAl'.    11. 

have  here  the  union  of  two  separate  and  distinct  causes  of 
action  existing  in  favor  of  distinct  parties,  neither  having  any 
interest  in  the  cause  of  the  other.  It  is  claimed  that  under 
sections  2649,  2650  of  the  Code  the  objection,  not  having  been 
taken  by  either  demurrer  or  answer,  is  waived.  But  this  is 
not  a  case  of  defect  of  parties,  as  contemplated  in  section  2648, 
but  a  misjoinder  of  parties.  An  amendment  might  have  been 
made  by  striking  out  the  name  of  one  of  the  parties,  or  dismiss- 
ing the  cause  of  action  as  to  one.  Hinkle  v.  Davenport,  supra. 
But  this  was  not  done,  and  both  parties  stood  before  the  court 
asking  judgment.  In  Cogswell  v.  Murphy,  p.  44,  ante,  it  was 
held  that  judgments  could  not  be  rendered  against  three  de- 
fendants, for  damages  done  by  their  cattle,  the  proof  showing 
that  each  defendant  owned  some  of  the  cattle,  and  that  none  of 
them  were  jointly  owned  by  the  defendants.  That  was  a  case 
in  which  separate  actions  should  have  been  brought  against  the 
defendants;  this  is  one  in  which  separate  actions  should  have 
been  brought  by  the  plaintiffs.  The  principle  involved  is  the 
same.  The  court  did  not  err  in  sustaining  the  motion  to  dis- 
miss the  cause.  The  cause  being  properly  dismissed,  the  rul- 
ing upon  the  motion  to  dismiss  the  attachment  becomes  immate- 
rial, and  it  is  not  necessary  to  review  it. 

Affirmed. 

V*H- 

>  JEFFERS  V.  FORBES. 
28  Kan.,  174.    [1882.] 

Action  brought  by  Jeffers  and  thirteen  others  against  Forbes 
and  another,  to  set  aside  certain  deeds.  At  the  September  term, 
1881,  the  court  sustained  a  demurrer  to  plaintiff's  petition,  to 
which  ruling  they  excepted,  and  have  brought  the  case  here  for 
review. 

Brewer,  J.:  The  plaintiffs  in  error  (plaintiffs  below)  were 
respectively  the  widow  and  children  of  A.  R.  Jeffers,  deceased, 
and  filed  their  petition  in  the  district  court  of  Doniphan  county, 
seeking  to  set  aside  six  several  deeds  executed  by  themselves 
separately  to  the  defendant,  W.  H.  Forbes,  and  also  a  subse- 
quent deed  from  W.  H.  Forbes  to  his  co-defendant,  B.  N. 
Forbes.  The  deeds  from  the  plaintiffs  were,  respectively,  a 
deed  from  the  widow,  four  separate  deeds  from  the  adult  chil- 


Sec,  2.]  jeffers  v.  forbes.  221 

dren,  and  a  guardian's  deed  from  the  widow  as  guardian  for 
the   minor  children.     These   deeds  were  executed  at   different 
dates  and  places,  and  all  taken  together  conveyed  a  full  title 
to  the  land  described  therein.     To  the  petition  defendants  de- 
murred on  the  ground  that  several  causes  of  action  were  im- 
properly joined,  and  also  that  the  petition  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.     The  demurrer  was 
sustained,  and  plaintiffs  now  bring  the  question  here   for  re- 
examination.    The  facts  as  disclosed  in  the  petition  are  briefly 
as  follows:     On  October  1,  1875,  A.  R.  Jeffers  was  the  owner 
in  fee-simple  of  a  tract  of  about  310  acres  in  Doniphan  county, 
Kansas,  and  on  that  day  he  and  his  wife  executed  a  mortgage 
to  the  Phoenix  Insurance  Company  to  secure  the  payment  of 
$:]  300   with  interest  at  10  per  cent.    They  also  executed  a  sec- 
ond mortgage  on  the  land  to  the  defendant,  W.  H.  Forbes,  for 
$A28.     In  August,  1878,  A.  R.  Jeffers  died  intestate,  his  death 
being  sudden  and  from  accident,  while  away  from  home,  leav- 
ing the  plaintiffs  as  his  heirs,  and  also  leaving  personal  prop- 
erty more  than  enough  to  pay  and  discharge  all  debts  agamst 
the  estate,  as  well  as  all  expenses  of  administration.     Besides 
the  above  property  he  was  also  the  owner  at  the  time  of  his 
death    of   an    unimproved   tract   of    forty   acres    in   Doniphan 
county,  worth  $10   per  acre.     Interest  had  been  paid  on  the 
insurance  company's  mortgage  up  to  April  1,  1878.     The  mort- 
gaged tract  had  been  occupied  by  A.  R.  Jeffers  and  his  family 
for  several  years  as  a  homestead,  and  continued  to  be  so  occu- 
pied by  the'  widow  and  younger  children  after  his  death  until 
the  twelfth  day  of  March,  1879,  when,  by  fraud,  fradulent  rep- 
resentation, threats,  and  duress  on  the  part  of  the  defendant, 
W    II.  Forbes,  they  were  dispossessed  by  him.    The  mortgaged 
tract  was  worth  at  the  time  of  the  death  of  said  A.  R.  Jeffers 
the  sum  of  $12,380,  and  the  annual  profits  were  $1,500.     This 
value  continued  up  to  the  time  of  the  execution  of  the  deeds 
complained  of,  and  was  well  known  to  the  defendants. 

A  few  weeks  after  the  death  of  said  A.  R.  Jeffers,  W.  II. 
Forbes  purchased  the  insurance  company's  mortgage,  represent- 
in-  that  he  was  doing  so  as  a  matter  of  friendship  for  the 
widow  and  children.  After  obtaining  possession  of  this  mort- 
gage the  attitude  of  Forbes  towards  the  family  suddenly 
changed.  He  became  hostile,  and  demanded  immediate  pos- 
session of  *he  property  so  mortgaged,  falsely  representing  that 
the  indebtedness  of  the  estate  was  many  thousands  of  dollars 


222  PARTIES  TO  ACTIONS.  [ClIAP.  II. 

more  than  it  was  two  years  after  found  to  be,  and  that  its 
aggregate  was  so  great  that  no  property,  either  real  or  per- 
sonal, would  be  left  to  the  widow  or  children.  The  widow  being 
old  and  infirm,  little  versed  in  business  matters,  paralyzed,  and 
overwhelmed  with  distress  on  account  of  her  sudden  bereave- 
ment, ignorant  of  her  husband's  real  financial  condition  or  of 
her  rights  under  the  law,  being  without  means  at  that  time 
to  procure  counsel  of  her  own,  and  each  and  all  of  the  children 
being  young  and  unskilled  in  business,  and  fearing  that  de- 
fendant Forbes  could  and  would  proceed  to  dispossess  the  plain- 
tiff and  her  family,  and  under  the  duress  and  threats  of  said 
defendant  Forbes,  the  widow  and  adult  children  conveyed  by 
deeds  of  quitclaim  their  interest  in  the  mortgaged  tract,  and 
the  widow  was  persuaded  to  become  guardian  of  the  minor 
children,  and  to  institute  and  carry  through  proceedings  in 
the  probate  court  by  which  the  interests  of  said  minor  children 
W'cre  also  conveyed  to  said  Forbes — the  sole  consideration  above 
the  mortgage  debts  received  by  said  grantors  beins'  a  tract  of 
forty  acres,  costing  $350,  which  said  Forbes  caused  to  be  con- 
veyed to  said  widow.  The  prayer  of  the  petition  was  that  all 
of  said  six  deeds  from  the  plaintiffs  to  W.  H.  Forbes,  and  that 
from  W.  H.  Forbes  to  his  brother,  be  canceled  and  declared  void 
and  of  no  effect;  that  the  defendant  be  compelled  to  account 
for  the  use  and  occupation  of  the  lands  since  March  12,  1879, 
and  for  such  other  and  further  relief  as  might  be  deemed  just 
and  equitable. 

The  first  ground  of  demurrer,  as  heretofore  stated,  is  that 
several  causes  of  action  were  improperly  joined;  and  the  con- 
tention is  that  the  setting  aside  of  each  of  the  six  several  deeds 
from  the  plaintiffs  to  the  defendant,  W.  H.  Forbes,  was  a 
separate  and  independent  cause  of  action,  in  which  only  the 
grantor  in  such  deed  had  any  interest.  On  the  other  hand,  it 
is  insisted  that  the  plaintiffs  together  were  the  owners  of  a 
single  tract;  that  but  a  single  contract  and  agreement  was  en- 
tered into  between  them  and  the  defendant,  W.  H.  Forbes; 
that,  in  pursuance  of  such  single  contract  and  agreement,  the 
various  interests  held  by  the  several  plaintiffs  were  conveyed 
to  said  Forbes;  that  if  such  contract  and  agreement  was  frau- 
rulent  and  void,  the  plaintiffs  had  a  joint  interest  in  having  it 
so  adjudged,  and  all  instruments  executed  to  carry  it  into  effect 
canceled  and  declared  null  and  void;  and  that,  therefore,  there 
was  but  a  single  cause  of  action,  in  which  all  the  parties  plain- 


Sec.  2.]  jeffers  v.  forbes.  223 

tiff  were  interested,  and  to  enforce  which  they  may  unite  in  a 
single  action. 

We  think  the  contention  of  the  defendants  in  error  is  cor- 
rect, and  that  the  ruling  of  the  district  court  must  be  sustained 
on  this  ground.     Section  35  of  the  code  proscribes  the  rule  as 
to  the  joinder  of  parties  plaintiff.    It  reads:   "All  persons  hav- 
ing an  interest  in  the  subject  of  the  action  and  in  obtaining  the 
relief  demanded  may  be  joined  as  plaintiffs,  except  as  otherwise 
provided  in  this  article."     Now,  the  title  by  which  the  plain- 
tiffs  held   this  tract  was  that   of  tenants  in   common.     Each 
owned  an   individual  interest,  and  his  ownership  was  not  af- 
fected in  the  slightest  degree  by  the  question  as  to  who  held  the 
title  of  the  other  interests.     Either  owner  might  sell  or  refuse 
selling,  and  his  right  and  title  could  not  be  abridged  by  any 
action  of  his  co-tenants.     Whatever  may  have  been  the  wrong 
in  the  agreement,  the  transfer  of  title  was  eft'ected  only  by 
these  separate  conveyances.     The  deed  of  the  widow  passed  no 
title  away  from  any  of  her  children.    That  deed  may  stand  or 
fall  without  in  the   least   affecting  any  of  the  other  convey- 
ances.    Suppose,   for   instance,   an   action   was  brought  to  set 
aside  the  widow's  deed  alone,  can  it  be  claimed  for  a  moment 
that  the  children  would  be  necessary  or  proper  parties  to  such 
an  action?  Whatever  the  consideration  received  by  the  widow, 
whatever  inducements  she  received  for  the  execution,  whatever 
threats  or  promises  were  made  to  her,  they  would  have  no  right 
to  challenge  the  deed,  they  would  not  be  interested  in  having 
the  deed  set  aside,  they  would  have  absolutely  no  right  to  take 
part  in  the  litigation.     This  would  be  a  matter  concerning  her- 
self alone.     If  she  had  been  wronged,  she  and  she  alone  could 
bring  an  action  to  right  that  wrong,  and,  beyond  question,  they 
would  be  improper  parties  to  such  an  action.    If  successful  they 
would  gain  nothing;  if  unsuccessful  they  would  lose  nothing. 
The  same  may  be  said  in  reference  to  each  of  the  other  dccds^ 
The  grantors  therein  would   be  the  onlv  parties  interested  in 
having  those  deeds  set  aside.    It  is  not  enough  under  the  section 
quoted  that  all  the  plaintiffs  should  have  an  interest  in  the  sub- 
jpptnf  thp  action:  it  is  essential  that  they  gho^ldalljiave  an 
jnterestTn  obtaining  the  relief  dtMiianded,    But  only  the  "grantor 
in  each  deed  is  interested  in  obtaining  the  cancellation  of  that 
deed.     As  each  grantor  is  alone  interested   in   obtaining  the 
cancellation   of  his   own  deed,   and   as  all  the  other  plaintiffs 
would  be  improper  parties  in  an  action  brought  by  the  one  alone 


224  PARTIES  TO   ACTIONS,  [ChAP.  II. 

to  set  aside  bis  individual  deed,  so  whero  all  the  parties  unite 
in  an  action  to  have  set  aside  six  several  deeds  by  separate 
grantors  conveying  separate  interests,  they  unite  six  several 
clauses  of  action  in  one  suit,  and  six  several  causes  of  action 
in  each  of  which  only  a  portion  of  the  plaintiffs  is  interested. 
This  does  not  assimilate  an  action  in  which  the  possession  of 
the  land  owned  in  common  is  disturbed,  for  there  each  of  the 
owners  is  alike  interested  in  the  possession.  Jointly  interested 
in  the  possession,  they  may  jointly  sue  for  any  disturbance  of 
their  possession.  But  while  jointly  interested  in  the  possession, 
they  are  not  jointly  interested  in  the  title.  Each  owns  his  title 
separate  and  apart  from  the  other — owns  it  absolutely  and 
alone.  The  fact  that  they  take  by  inheritance  from  a  common 
ancestor,  in  no  manner  unifies  their  title.  They  hold  by  the 
same  complete,  separate,  and  independent  title  as  though  each 
had  purchased  bis. interest  from  a  different  party.  Nor  does 
the  case  assimilate  that  in  which  by  a  single  instrument,  as  a 
tax  or  other  deed,  a  cloud  is  cast  upon  the  title  to  the  entire 
tract,  or  one  in  which  owners  of  different  tracks  unite  in  a 
single  action  to  abate  a  common  nuisance.  In  such  cases  there 
may  be  said  to  be  a  unity  of  action,  a  unity  in  the  relief  de- 
manded ;  either  the  single  cloud  is  to  be  removed  from  the  title, 
or  the  common  nuisance  is  to  be  abated.  But  here  each  party's 
title  is  affected  by  a  separate  deed  executed  at  a  different  time 
and  place,  and  purporting  to  convey  only  his  own  separate  in- 
terest, and  the  sole  relief  he  can  obtain  is  the  cancellation  of  his 
own  deed. 

Again,  it  is  not  true  that  there  was  but  a  single  contract  or 
agreement  in  reference  to  the  transfer  of  this  land.  The  peti- 
tion alleges  that  under  threats,  duress,  etc.,  as  above  stated,  the 
widow  made  her  deed,  and  that  under  like  threats,  duress,  etc., 
and  for  the  sake  of  saving  some  small  pittance,  if  they  could, 
for  their  mother,  the  other  adult  plaintiffs  made  their  deeds. 
So  that  there  is,  in  fact,  no  unity  either  in  the  cause  of  action 
or  in  the  relief  demanded.  In  1  Daniell's  Chancery,  395,  the  I 
author  says:  "Thus,  if  an  estate  is  sold  in  lots  to  different  pur- 
chasers, the  purchasers  cannot  join  in  exhibiting  one  bill  against 
the  vendor  for  a  specific  performance;  for  each  party's  case 
would  be  distinct,  and  there  must  be  a  distinct  bill  on  each  con- 
tract. Hudson  V.  Maddison,  12  Sim.,  416;  Coop.  Eq.  PL,  182; 
Story,  Eq.  PI.,  272,  and  notes."  If  separate  vendees  cannot 
unite  in  a  single  bill  against  a  common  vendor,  neither  caa 


Sec.  2.]  jeffers  v.  forbes.  225 

separate  vendors  unite  in  a  single  bill  against  a  common  vendee. 
See,  further,  the  following  authorities  from  this  court:  Harsh 
V.  Morgan,  1  Kan.,  293;  Winfield  Town  Co.  v.  Maris,  11  Kan., 
147;  Hudson  v.  Atchison  Co.,  12  Kan.,  147;  Swenson  v.  Plow 
Co.,  14  Kan.,  388.  Also  the  cases  of  Bort  v.  Yaw,  46  Iowa,  323, 
and  Tate  v.  Railroad  Co.,  10  Ind.,  174,  in  which  last  case  the 
court  in  the  syllabus  lays  down  the  doctrine  thus:  "Two  or 
more  persons,  having  separate  causes  of  action  against  the  same 
defendant,  though  arising  out  of  the  same  transaction,  cannot 
unite;  nor  can  several  plaintiffs  in  one  complaint  demand  sev- 
eral distinct  matters  of  relief;  nor  can  they  enforce  joint  and 
separate  demands  against  the  same  defendants." 

We  conclude,  then,  that  upon  this  ground  the  ruling  of  the 
district  court  is  correct,  and  mu.st  be  affirmed.  ^ 

STATE   EX  REL.  v.  BEASLEY. 

r)7  Mo.  Api>.,  570.     [lS9i.] 

Gn.L,  J. :  This  is  a  joint  action  brought  by  James  Glass,  of 
Sedalia,  and  Gildenhaus,  Wulfing  &  Co.,  of  St.  Louis,  against 
Beasley  and  others,  on  a  constable's  bond,  the  object  being  to 
recover  damages  for  the  alleged  wrongful  seizure  and  conver- 
sion by  the  defendant,  Beasley,  as  such  constable,  of  certain 
personal   property  belonging  to  the  plaintiffs. 

In  the  year  1890  Watts  was  engaged  in  the  conduct  of  a  small 
store  at  Nelson,  Saline  county,  selling  drugs,  groceries,  etc., 
and  became  indebted  to  these  plaintiffs  and  others.  On  Sept. 
24,  1890,  Watts  made  a  chattel  mortgage  to  Gla.ss,  covering  by 
its  terms  merely  the  fixtures  and  drug  bottles  in  the  store ;  and 
thereafter  on  Oct.  6,  executed  a  second  chattel  mortgage,  in 
favor  of  the  plaintiff's,  Wulfing  &  Co.  The  latter  mortgage  not 
only  included  the  fixtures  (which  Glass'  mortgage  covered),  but 
also  conveyed  the  entire  stock  in  trade.  Under  the  Wulfing 
mortgage,  W^atts  was  permitted  to  continue  his  business  in  the 
usual  manner,  nor  was  said  mortgage  ever  recorded.  Among 
the  conditions  of  the  Wulfing  mortgage  was  one  that,  in  case 
the  creditors  of  Watts  should  sue  him,  then  such  conveyance 
should  become  absolute,  etc. 

Shortly  thereafter  other  creditors  of  Watts  brought  their 
several  actions,  and  Parmalee,  an  attorney  of  Sedalia,  having 
15 


226  PARTIES  TO   ACTIONS.  [ClIAP.  11. 

charge  of  Glass  and  Wulfing  claims,  went  to  Nelson  and  took 
pos.session  of  Watts'  store,  fixtures,  stock  and  all.  Whether 
Parmalee  took  such  possession  for  and  in  behalf  of  Glass  alone, 
or  for  Glass  and  Wulfing,  is  in  dispute.  At  any  rate,  Watts' 
creditors,  other  than  the  above  named  mortgagees,  immediately 
attached  on  their  respective  claims  and  took  the  goods  from 
Parmalee,  the  alleged  agent  and  attorney  of  Glass  and  Wulfing. 
Thereupon  this  suit  was  brought,  which,  on  a  trial  by  a  jury, 
resulted  in  a  verdict  and  judgment  for  the  plaintiffs,  and 
defendants   appealed. 

The  judgment  herein  cannot  be  allowed  to  stand.  There  is 
a  clear  misjoinder  of  parties  plaintiff,  and  the  question  was 
properly  raised  in  the  defendant's  answer.  The  case,  under 
the  evidence  (stated  most  strongly,  too,  for  plaintiffs),  is  this: 
A  and  B,  as  several  and  independent  creditors  of  C,  each  secure 
their  several  chattel  mortgages  on  C's  property.  A,  the  prior 
mortgagee,  has  a  lien  on,  and  right  of  possession  to,  a  part 
thereof,  to-wit,  the  store  fixtures,  while  B,  the  other  creditor, 
secures  a  first  lien  on  the  stock  of  goods  (which  is  not  covered 
by  B's  mortgage),  with  a  further  pledge  of  the  equity  which 
the  mortgagor  C  might  have  in  the  fixtures  after  the  satisfac- 
tion of  A's  mortgage.  These  creditors  now  seek  to  avail  them- 
selves of  these  securities  and  take  possession  of  the  property. 
That  possession  must  be  such,  and  only  such,  as  was  provided 
by  the  respective  mortgages.  Under  A's  mortgage,  he  could 
only  take  the  store  fixtures,  since  that  is  the  full  extent  of  the 
property  covered  by  it.  And  so  with  B  (the  holder  of  the  last 
incumbrance)  ;  he  was  only  authorized  to  take  and  hold  for  the 
payment  of  his  claim  the  property  included  in  his  mortgage — 
nothing  more.  This  was  the  stock  of  goods,  and  which  was  not 
included  in  A's  mortgage.  B  was  not  entitled  with  A  even  to 
joint  possession  of  the  goods  mentioned  in  A's  mortgage,  for  A 
had  a  prior  incumbrance,  and  B,  in  that  regard,  stood  just 
where  the  mortgagor  C  would 

Here,  then^ere  two  separate  and  distinct  mortgagee  credit- 
ors, holding  each  a  lien  right  in  separate  and  distinct  personal 
property.  All  this  property,  we  will  assume,  was  wrongfully 
taken  and  converted  by  a  third  party.     The  question  is,  can 


these  two  mortgagees,  claiming  under  separate  instruments, 
which  cover  different  property,  prosecute  a  jomt  suit  against 
the  trespasser.  We  musthold  that  they  cannot  While,  un- 
questionably,  the  rule  is,  that  tenants  in  common  of  a  chattel 


Sec.  2.  J  state  ex  rel,  v.  beasley.  227 

should  join  in  an  action  for  any  injury  or  trespass  done  to  their 
joint  property  (State  ex  rel.  Johnson  v.  True,  25  Mo.  App.,  451; 
1  McQuillen's  PI.  &  Pr.,  Sec.  Ill),  it  is  equally  true  that,  "where 
the  interest  affecte^  and  the  damage  sustained  are  respectively 
several,  there  must  be  separate  actions  at  the^uit  of  the  parties' 
injured"     Barb,  on  Parties  (2nd  Ed.),  267. 

The  wisdom  uf  this  rule  is  quite  manifest  in  the  case  at  bar. 
It  may  be  that  Glass,  under  his  mortgage,  should  be  entitled  to 
the  property  so  conveyed  to  secure  his  claim;  while,  on  the 
other  hand,  it  might  be  that  Wulfing  &  Co.'s  mortgage  was  in- 
valid, because  not  recorded  nor  passession  thereunder  taken 
before  other  creditors  attached.  The  cases,  therefore,  are  not 
only  technically  separate  and  distinct  controversies,  but  the 
merits  or  demerits  of  each  are  wholly  different. 

The  judgment  is  reversed  and  the  cause  remanded  with  di- 
rections to  dismiss.     All  concur. 


•  V^  &H-,- 


TROMPEN  V.  YATES. 
66  Neb.,  r>2r>.     [190:^.\ 

Hastings,  C.  :  This  was  an  action  brought  by  the  defendants 
in  error  jointly,  claiming  damages  for  the  conversion  by  plain- 
tiff in  error,  a.s  sheriff",  of  certain  goods.  February  18,  1897, 
Frances  E.  Price  gave  a  chattel  mortgage  on  her  stock  of  drugs 
in  the  store  at  the  corner  of  Tenth  and  P  streets,  in  the  city  of 
Lincoln,  Neb.,  for  $500,  to  her  husband,  J.  W.  Price.  The  same 
day  she  also  executed  a  chattel  mortgage  on  the  same  drugs  to 
J.  R.  Nichols  for  $100,  for  services  as  a  clerk  in  the  store ;  also 
to  Chas.  Yates  for  $40,  for  services  in  the  store ;  also  to  J.  D. 
Johnson  for  $25,  for  grocery  bill;  also  to  Victor  Weiler  for 
$20,  borrowed  money;  also  to  W.  L.  Garten  for  $30,  borrowed 
money ;  also  to  C.  M.  Seitz  for  $20,  grocery  bill ;  and  also  to  F. 
J.  Kelley  for  $350.  Of  this  amount  $266  was  claimed  to  be 
due  for  past  services,  $40  for  borrowed  money,  and  the  remain- 
der for  contemplated  services  in  upholding  the  transfers;  but 
on  this  indebtedness  to  Kelley  was  to  be  credited  $90.15,  store 
account.  A  mortgage  was  also  made  to  the  Lincoln  Drug  Com- 
pany for  $110,  and  to  W.  E.  Clarke  for  $350,  and  to  Kipp  Bros, 
for  $110,  to  secure  indebtedness  due  them.  The  execution  and 
filing  of  the  mortgages  were  without  the  knowledge  of  the  mort- 


228  PARTIES  TO  ACTIONS.  [ChAP.  II. 

gagees,  except  Price,  Nichols,  Weiler,  and  Kelley;  but  the 
action  was  ratified  subsequently  by  all  of  the  other  mortgagees, 
who  were  parties  to  this  action.  The  mortgages  of  Price, 
Nichols,  Kelley,  and  Yates  were  all  filed  at  2:35  p.  ra.;  the 
mortgages  of  Johnson,  Weiler,  Seitz  and  Garten  at  2:40  p.  m., 
and  those  of  the  Lincoln  Drug  Company,  Clarke  and  Kipp 
Bros,  at  2:45  p.  m.,  on  February  20,  1897.  The  mortgagee 
Kelley  claimed  to  have  taken  possession  of  the  stock  of  goods 
on  behalf  of  the  mortgagees  immediately  on  the  filing  of  the 
instruments,  and  to  have  placed  an  inscription  on  the  front 
door,  "Closed  under  Chattel  Mortgage."  He  claims  to  have  re- 
tained such  possession  until  the  goods  were  levied  upon  by 
Sheriff  Trompen.  The  remnant  of  the  goods  left  by  the  sheriff 
he  claims  to  have  sold  for  $585,  and  with  the  proceeds  paid 
$100  to  Nichols  and  $485  to  Price.  The  answer  alleges  a  mis- 
joinder of  causes  of  action;  a  misjoinder  of  parties  plaintiff. 
*  *  *  The  petition  of  the  plaintiffs  below  alleged  that  they 
were  in  the  actual  possession  of  the  goods,  and  that  these  were 
wrongfully  taken  away  from  their  possession  by  the  defendant 
sheriff'.  Copies  of  their  several  mortgages  were  attached.  A 
motion  was  filed  by  the  sheriff  to  require  the  plaintiffs  to  more 
specifically  state  in  what  manner  he  had  taken  possession  of  the 
goods;  to  state  particularly  what  merchandise  was  taken  under 
execution,  and  what  under  attachment.  A  demurrer  was  also 
filed.  First,  that  there  was  a  defect  of  parties  plaintiff;  and, 
second,  that  the  petition  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action  in  favor  of  plaintiffs.  Both  motion 
and  demurrer  were  overruled,  and  the  defendants  then  an- 
swered as  above  stated. 

Two  briefs  have  been  filed  on  behalf  of  the  plaintiff  in  error, 
in  one  of  which  the  sole  question  argued  is  the  alleged  mis- 
joinder of  the  plaintiffs.  It  is  urged  that  section  40  of  our 
Code  of  Civil  Procedure  furnishes  no  warrant  for  joining  these 
plaintiffs,  because  they  have  no  common  right ;  that  their  mort- 
gages were  filed  at  different  times,  and  their  holding  cannot  be 
joint.  The  result  does  not  seem  necessarily  to  follow  even  from 
holding  their  mortgages  separate  and  distinct  liens  upon  the 
same  property. 

They  allege  a  joint  possession,  which  they  say  the  sheriff  has 
invaded.  If,  in  fact,  they  were  in  J;he  Joint_]K)ssession  of  these 
goods,  and  the  sheriff  wrongfully  took  them,  it  would  seem 
to  constitute  a  common  wrong  against  all  the  tenants  who  were 


Sec.  2.]  trompen  v.  yates.  229 

joiptly  holding.     Each  would  have  a  joint  interest  with  all  the 
others  in  vindicating  their  joint  possession:     Their  case  would 
seem  to  come  di^stinctly  within  the  terms  as  well  as  the  spirit" 
of  section  40  of  the  Nebraska  Code  of  Civil  Procedure.     The 
question  seems  to  be  argued,  however,  as  if  there  has  bei^n  no 
attempt  to  take  possession,  and  the  plaintiffs  were  simply  trying 
in  this  action  to  vindicate  a  right  under  their  several  mort- 
gages.    Even  if  such  were  the  case,  we  think,  under  the  hold- 
ing of  this  court  in  Earle  v.  Burch,  21  Neb.,  710   (33  N.  W., 
254),  and  in  the  earlier  case  of  Kaufman  v.  Wessel,  14  Neb.,  162 
(15  N.  \V.,  219),  and  the  approval  that  has  been  often  given  to 
both  these  cases,  that  this  court  is  committed  to  the  applying 
in  law  actions  of  the  equity  doctrine  that  interest  in  the  sub- 
ject_of  the  action  gives  a  right  to  join  as  plaintiff.     Earle  v. 
Burch  certainly  holds  that  successive  mortgagees,  merely  as  suchi 
and  where  possession  has  not  beenliag~oiraDy  of  the  mortgages! 
may ^In  in  replevying  the  property.     If  iii  a  replevin  action," 
why  not,  then,  in  one  for  conversion?     A  distinction  is  sought 
to  be  made  in  the  nature  of  the  relief  sought,  in  the  one  case 
an  indivisible  pos-session  of  the  property  which  is  the  common 
subject  to  the   plaintiff's  rights;   in   the  other  a   lump  sum  of 
money,  in  which  plaintiffs  have  separate  and  possibly  conflict- 
ing rights.     But  we  have  section  429  of  the  Code,  providing  ex- 
j)ressly  for  this  situation,  and  apparently  adopted  with  precise- 
ly this  extension  of  equity  ideas  to  law  cases  in  view.     It  pro- 
vides:    "Judgment  may  bt'  given  for  or  against  one  or  more 
of  the  several   i)laintiffs,   and   for  or  again.st  one  or  more  of 
several   defendants;    it   may  determine  the  ultimate   rights  of 
the  parties  on  either  side,  as  between  themselves,  and  it  may 
grant  to  the  defendant  any  affirmative  relief  to  which  he  may 
be  entitled.     In  an  action  against  several  defendant.s,  the  court 
may  in  its  discretion  render  judgment  against  one  or  more  of 
them,  leaving  the  action  to  proceed  against  the  others,  whenever 
a  several  judgment  may  be  proper.  •  The  court  may  also  dismiss 
the  petition  with  costs,  in  favor  of  one  or  more  of  the  defend- 
ants, in  case  of  unreasonable  neglect  on  the  part  of  the  plain- 
tiff to  serve  the  summons  on  other  defendants,  or  to  proceed  in 
the  cause  against  the  defendant  or  defendants  served."    Coun- 
sel  say  that  these  several  lienholders  have  a  common  interest  in 
the  possession  which  is  the  subject  of  the  action  in  replevin,  but 
none  in  the  whole  amount  of  damages  recoverable  for  the  con- 
version.    But  what  more  interest  has    one    lienholder    in    the 


230  PARTIES  TO   ACTIONS.  [ClIAP.  II. 

other's  possession  than  he  has  in  the  other's  recov- 
ery  of  damages?  The  truth  seems  to  IjiPthar  the  equity 
practice  of  taking  into  the  action  everybody  who  claims 
anlnterest  in  its  subject-matter  was  the  object  aimed  at  in  these 
Code  provisions,  and  this  court  seems  to  have  carried  them  out 
according  to  their  letter  and  spirit.  In  Lancaster  Co.  v.  Rush, 
35  Neb.  119  (52  N.  W.  837),  the  city  of  Lincoln  was  joined 
with  the  county  in  foreclosing  a  tax  lien.  This  court  says  that 
the  city  need  not  have  joined,  but,  as  it  had  an  interest  in  the 
sale  certificate  to  the  amount  of  its  taxes,  it  properly  might  do 
so,  under  section  40  of  the  Code.  Other  jurisdictions  have  ap- 
plied similar  Code  provisions  in  the  same  way.  In  Munson  v. 
Eailway  Co.  (Sup.)  65  N.  Y.  Supp.  848,  it  is  held  that  an  in- 
surer, who  has  paid  in  part  for  property  destroyed  by  the  rail- 
way company's  fault,  can  join  in  an  action  for  damages.  A 
similar  case  is  Railway  Co.  v.  Miller  (Tex.  Civ.  App.)  66  S.  W. 
139.  In  England,  in  1899,  under  similar  statutory  provisions, 
it  was  declared  in  Ellis  v.  Bedford,  68  Law  J.  Ch.  289,  "All 
persons  having  a  common  right  which  is  invaded  by  a  common 
enemy,  although  they  may  have  different  rights  inter  se,  are  en- 
titled to  join  in  respect  to  that  common  right."  In  that  case 
the  common  right  was  to  the  use  of  stalls  in  a  market,  and  a 
part  of  the  invasion  was  the  exaction  of  illegal  tolls  for  its  use 
from  the  different  plaintiffs.  In  Railway  Co.  v.  Haber 
(Kan.)  44  Pac.  632,  the  joining  of  145  parties  in  one 
action  for  damages  by  reason  of  the  introduction  of  cattle  hav- 
ing the  splenic  fever,  and  which  communicated  that  disease  to 
native  cattle,  was  upheld.  It  is  not  thought  that  there  was  error 
in^^ermitting  thejoint  action  of  plaintiff's  in  this  case.  Counsel 
for  the  sheriff  insist  that  the  case  of  Gray  v.  Rothschild,  48 
Hun,  596,  1  N.  Y.  Supp.  299,  is  entirely  parallel  to  the  one  at 
bar,  and  should  control  it.  There  is,  however,  a  very  manifest 
distinction  between  the  two  cases.  The  New  York  case  was 
brought  by  creditors  who  had  sold  goods  to  the  defendants. 
These  goods  were  made  away  with  fraudulently.  The  creditors 
joined  in  an  action  for  their  value.  It  was  held  that  it  could 
not  be  maintained.  The  right  of  each  plaintiff  went,  not  to  the 
whole  goods,  but  only  to  the  part  of  them  bought  from  himself. 
In  the  present  case  such  right  as  each  mortgagee  had  went  to 
the  entire  lot  of  goods.  Where  to  this  is  added  joint  possession, 
the  right  to  recover  jointly  for  their  taking  seems  complete. 

Judgment  affirmed. 


■Vycrv-^      lp-<-0O^.A,v_ 


231 
Sec.  2.1  sw.iETUouT  v.  c.  &  n.  w.  k.  b.  co. 

SWARTHOCT  v.  C.  &  X.  W.  K    R-  CO. 
49  Wis.  62S.     [1880.] 
Cole  J      This  action  is  brought  by  the  plaintiffs  to  recover ^..J^^  «~t, 
of  the  defendant  company  the  damages  caused  by  the  burnmg  ^^^^  I V 
of    he  plaintiff  Swarthonfs  property  through  the  negligence  of  ^^^^^^^^ 
°;e  defendant.    The  property  destroyed  is  alleged  to  have  been  ^— — ^^^ 
of  the  value  of  $6,727.    The  plaintiff  insurance  companies  were  ^^^^  ^ 
tiers  of  the  property  to  the  extent  of  $1,000  each.    After  the  ^^^ 
fire  the  insurance  companies   paid  Swarthout  the  amount  o    ^^^^-^ 
their  respective  policies,  and  at  the  same  t,me  Swarthout  made  -^  .-^--^ 
and  dcUveed  to'each  an  instrument  in  writing  assigning  and  ^..^^^.^ 
bating  over  to  each  insurance  company  his  claim  against  the 
atoad  company  to  the  extent  of  $1,000,  and  -"^^ating  -f^ 
insurance  company  to  his  rights  for  that  amount.    Judgment  is 
demanded  for  the  value  of  the  property  destroyed. 

The  defendant  demurred  to  the  complaint  on    he  ground  tha 
it  appeared  from  the  face  thereof-FiV.f,  that  there  ,s  a  dcfec 
of  parties  plaintiff  herein  in  this,  that  on  the  facts  alleged  the 
p  afnt  ffs  do  not  have  any  joint  claim  or  cause  »£  action  agains^ 
Te  defendant;  if  any  claim  or  cause  of  action  is  set  forth  in 
s^^d  complaint  as  to  any  or  all  of  said  plaintiffs  such  claim  or 
cluse  o"  action  as  to  each  plaintiff  is  separate  and  distinct  from 
the  claim  or  cause  of  action  of  each  of  the  other  plaintiffs,  and 
to  each  such  several  causes  of  action  all  the    other    plaintiffs 
Iresaid  than  the  one  to  which  the  same  respectively  belongs 
a  e  unnecessary  and  superfluous:  and  are  improperly  joined  as 
Xntiffs  herein;  second,  that  several  causes  of  action  have  been 
fmproperlv  unit  d;  tUird.  that  the  complaint  does  not  state  facts 
Xe'nt  -to  constitute  a  cause  of  action.    The  demurrer    ot, 
complaint  was  overruled,  and  the  correctness  of  that  ruling  ls 
the  matter  to  be  decided  upon  this  appeal. 

Tre  learned  counsel  for  the  defendant,  in  support  o  the  de-( 
„„rrer  candidh-  admitted  the  law  to  be  well  established  that  an 
Tn  uranee  company  which  has  been  compelled  to  pay,  or  has. 
paTd  1  loss  covered  by  its  policy,  has,  after  such  payment  a; 
I- It  oi  action  against  the  person  who  wrongfully  caused  the, 
firfand  loss  to  the  amount  such  insurance  company  paid  even 
without  any  formal  assignment  by  the  assured  of  his  claim 
■lainst  the  party  primarily  liable.  An  examination  of  the  a  - 
thorities  will  show  that  this  admission  was  not  improvidently 


232  PARTIES  TO  ACTIONS.  [ChaP.  II. 

made.  And  the  courts  have  likewise  been  very  firm  in  sup- 
porting the  right  of  the  insurance  company  to  bring  an  action 
in  the  name  of  the  assured,  and  will  not  allow  the  latter  to  de- 
feat such  action  even  by  a  release  or  discharge  of  the  person  by 
whose  act  the  damage  wa.s  occasioned.     Hart  et  al.  v.  Western 

^ R.  R.  Co.,  13  Mete.  99 ;  Monmouth  County  Fire  Insurance  Com- 

.-..^  V^-^V*P^°y  ^'-  Huchinson  et  al.,  21  N.  J.  Eq.  107 ;  Conn.  Fire  Insur- 
iI?^>.A>.  ^^^^  Company  v.  Railway  Company,  73  N.  Y.  399.  These  au- 
e;tj^  X^  thorities  distinctly  affirm  this  position  on  the  ground  that  the_ 
r^-^/Xo  ^  assured,  by  accepting  payment  of  the  insurer,  subrogates  the 
>..v-»A^c.<v/^  latter  to  his  rights,  giving  such  insurer  full  authority  to  sue  the 
^^^'^*-^         party  causing  the  loss  in  his  name. 

"^  But  it  is  insisted  that  the  facts  stated  show  that  the  plaintiffs 

have  no  right  to  join  in  bringing  the  suit,  and  that  there  is  an 
improper  joinder  of  causes  of  action.    It  is  said  that  if  the  de- 
t^^^^L^  J,  fendant  is  liable  at  all  it  is  separately  and  distinctly  liable  to 
^Zji£L^  ^^^^  insurance  company  to  the  amount  paid  on  its  policy.    But 
A.  L^  5u^     it  seems  to  us  it  would  be  an  intolerable  rule  to  ajlnw  each  in- 
surance  company  to  bring  a  separate  suit.     The  railroad  com- 
pany might  well  say,  were  this  attempted^  the  claim  is  indivis- 
^       ^^       ible;  there  is  but  one  wrongful  act  complained  of,  one  loss  a'ncf 
l!\!^-"--r  <^^e  ^iaSiliTy.    It  mignt  wen  insist  tliat  tlie  whole  matter  should" 
W-  be  litigated  in  one  action.    And  what  objection  there  can  be  to 

allowing  the  owner  to  unite  with  the  insurance  companies  in 
bringing  one  action  to  determine  the  liability  of  the  defendant 
we  fail  to  perceive.     Under  the  old  practice  the  action  would 
probably  have  been  brought  in  the  name  of  the  assured  for  the 
benefit  of  all  concerned,  but  the  code  requires  the  action  to  be 
brought  in  the  name  of  the  real  party  in  interest.     Now  it  ap- 
pears Swarthout  has  made  an  assignment  in  writing  to  each  in- 
surance company  of  a  part  of  his  claim    against    the    railroad 
company  for  the  alleged  wrongful  destruction  of  his  property. 
<^ii^  X.su^       ^^  ^^  obvious  if  one  of  the  insurance  companies  may  bring  a 
^^^^^j^^^^^^^,  separate  suit  for  the  amount  of  its  claim  each  may,  and  as  the 
;,^^  »A       aggregate  amount  of  the  policies  falls  short  of  the  actual  loss, 
^  ,  ,Ju.Ju.  ^  Swarthout  may  sue  for  the  balance.    As  we  have  said,  a  rule  of 
>-S»A  Vv        law  which  would  allow  this  to  be  done,  would  operate  most  op- 
^  «^  ^:>^    pressively  upon  the  railroad  company.     For  a  single  wrongful 
'-^  ^-         act,  which  gave  rise  to  but  one  liability,  it  might  be  harrassed 
with  a  dozen  different  actions.     The  contract  of  insurance  is 
treated  as  an  indemnity,  and  the  insurer  as  a  surety  who  is  en- 
titled to  all  the  remedies  and  securities  of  the  assured,  and  to 


Sec.  2.]  swabthout  v.  c.  &  N.  w.  r.  r.  co.  233 

stand  in  his  place.  And  we  certainly  cannot  see  that  any  prin- 
ciple of  law  will  be  violated  in  allowing  the  different  insurance 
companies  to  unite  with  the  owner  of  the  property  in  an  ac- 
tion to  enforce  the  liability  of  the  railroad  company  in  this 
case. 

The  case  of  School  District  v.  Edwards,  et  al.,  46  Wis.  150, 
presented  an  analogous  question.  There,  two  or  more  school  dis- 
tricts brought  an  action  to  recover  moneys  in  the  hands  of  the 
defendants,  belonging  to  such  districts.  Mr.  Justice  Lyon,  in 
the  opinion,  says :  ' '  The  fact  the  several  school  districts  are 
entitled  to  the  money  in  unascertained  and  probably  in  unequal 
proportions,  is  no  impediment  to  this  action.  That  is  a  matter 
between  the  districts  with  which  the  appellants  have  no  concern. 
It  is  sufficient  for  the  purpose  of  maintaining  the  action  that 
they  are  jointly  entitled  to  the  money  claimed."  Page  159. 
Now,  it  is  apparent  that  there  was  the  same  reason  for  saying, 
in  the  case  last  cited,  that  the  defendants  were  liable,  in  separate 
actions,  to  each  school  district,  as  there  is  for  taking  the  ob- 
jection that  the  defendant  company  is  not  jointly  liable  to  the 
plaintiffs  in  this  case;  and  to  hold  that  these  plaintiffs  can- 
not, upon  the  facts  stated,  unite  in  one  action  to  enforce  what 
is  really  but  one  liability  or  cause  of  action,  but  that  each  must 
bring  a  separate  suit,  would  open  the  door  to  a  litigation  which 
would  be  most  oppressive  to  the  defendant,  and  which  would 
produce  much  mischief.  For  these  reasons  we  think  the  first 
ground  of  demurrer  not  well  taken.  Our  views  upon  the  first 
point,  of  course,  dispose  of  the  other  grounds  of  demurrer. 

The  order  of  the  circuit  court,  overruling  the  demurrer  is 
affirmed.  V)  i\     " 

SIMAR  &  WIFE  v.  CANADAY. 

53  N.  Y.  298.      [1873.] 

Appeal  from  order  of  the  general  term  of  the  supreme  court 
in  the  third  judicial  department,  setting  aside  a  verdict  in  favor 
of  plaintiffs  and  granting  a  new  trial. 

The  plaintiffs  are  husband  and  wife,  and  brought  this  ac- 
tion jointly  to  recover  damages  for  an  alleged  fraud  on  the  part 
of  defendant  in  inducing  plaintiffs  to  convey  to  defendant  cer- 
tain premises  known  as  the  "Newtonville  property,"  situated 
near  Albany,   and  to  receive  in  part  payment  therefor  three 


234  PARTIES  TO  ACTIONS.  [ClIAP.  II. 

bonds  and  mortgages  of  $1,000  each,  which  plaintiff  alleged  to 
be  worthless.  The  property  conveyed  was  owned  by  Mr,  Simar. 
The  three  mortgages  were,  by  his  direction,  and  as  a  j?ift  from 
him,  assigned  by  the  defendant  to  the  wife,  who  joined  with 
her  husband  in  the  deed  of  the  premises. 
Other  facts  appear  in  the  opinion. 

The  jury  rendered  a  verdict  for  plaintiffs,  and  exceptions 
were  ordered  to  be  heard  at  first  instance  at  general  term. 

FoLGER,  J.  *  *  *  4th.  Having  thus  shown  that  both 
Simar  and  his  wife  had  a  cause  of  action  (if  it  be  assumed  that 
a  case  of  fraudulent  representations  had  been  made  out),  the 
objection  of  the  defendant,  in  its  exact  letter,  returns. 

That  objection  was,  that  no  joint  cause  of  action  in  favor  of 
aX-«.,.^^-r  the  plaintiffs  had  been  made  out.  The  cause  of  action  we  have 
,  ^'-■*^  ^  found  in  the  husband  is  that  he  is  defrauded  of  the  fee  in  the 
^  .v^  ;;fr>«>vw.  premises ;  that  in  the  wife  is  that  she  is  defrauded  of  her  in- 
^  *^**^>-»<A  "choate  right  of  dower,  which  is  consequent  upon  his  title  In 
iV^^:^'^*^—  J'hey  arejQot  strictly  the  same  thing,  yet  they  are  bound 
it  -O^A,.  vA^  together  in  the  same  propeTtv:  thev  are  taken  nnt  nf  thp  nwn." 
■•'^^-^i^^^  ^^^  by  the  same  instrument,  and  that  instrument  is  induced  and 
^.  ^  the  two  rights  are  lost,  as  is  alleged,  by  the    same    fraudulent 

acts.  One  recovery  will  satLsfv  both  claims,  and  one  .judgment 
be  a  bar  to  another  action  by  either  of  the  plaintiffs.  The  acts 
of  the  defendant  were  done  at  one  time  to  both  plaintiffs,  and 
were  an  injury  to  both  plaintiffs,  inflicted  at  the  same  time; 
hence,  there_is  such  common  interest  in  the  subject  of  the  suits 
as  to  authorize  them  to  join  in  one  suit,  although  the  injury 
which  each  sustained  is  separate  and  distinct.  In  equity,  this 
rule  has  often  been  announced;  as  where  creditors,  by  different 
judgments,  united  in  one  action  as  plaintiffs  to  detect  and  re- 
press the  fraud  of  the  debtor  (Brinkerhoft'  v.  Brown,  6  J.  C.  R. 
139;  see  also  Fellows  v.  Fellows,  4  Cow.  682);  where  owners 
of  different  tenements  affected  by  a  nuisance  joined  in  an  action 
to  prevent  it  (Peck  v.  Elder,  3  Sandf.,  126,  note  [a] )  ;  where  pro- 
prietors of  the  different  mill  sites  united  in  an  action  to  restrain 
a  diversion  of  the  water  course  (Reid  v.  Gifford,  Hopk.,  416). 
And  at  law,  if  a  covenant  be  joint  expressly,  it  will  not  be  con- 
strued to  be  several  by  reason  of  several  interests,  per  Jewett, 
J.  (Pearce  v.  Hitchcock,  2  N.  Y.  388).  In  an  action  on  an  in- 
junction bond,  the  subject  of  the  action  being  the  damage  sus- 
tained by  the  obligees,  they  may  all  join  as  plaintiffs,  notwith- 
standing the  claim  of  one  of  them  is  different  in  character  and 


gEC.  2.]  SIMAR  AND  WIFE  V.  CANADAY.  23d 

amount  from  that  of  the  others.     (Loomis  v.  Brown,  10  Barb. 
325.)     And  the  code    (§59),  having  abolished  all  distinctions 
between  actions  at  law  and  suits  in  equity,  and  provided  for 
but  one  form  of  action,  then   (§117)  enacts   that    all   persons 
having  an  interest  in  the  subject  of  the  action,  and  in  obtain- 
iiic  the  relief  demanded,  may  be  joined  as  plaintiffs,  except  as 
otherwise  provided.     Here  both  plaintiffs  have  an  interest  luj 
the  subject  of  the  action;  be  that  subject  the  property  conveyed,! 
or  the  acts  of  the  defendant  and  the  consequent  damage,  and! 
both  have  an  interest  in  obtaining  the  relief  demanded.  "Therel 
is  a  common  point  of  controversy,  the  decision  of  which  aft'ectsl 
the  whole   and  will  settle  the  rights  of  all,"  so  far  as  the  issues\ 
in  this  action  are  concerned.     See  also  Ilubbell  v.  INIeigs,  and 

others  (50N.  Y.  480.)     *     *     *   _,  ,  ^  ,^ 

Judgment  of  General  Term  reversed* 


GOODNIGHT  V.  GOAR 

30  Ind.  418.     \1868.] 

FR.VZER  J  Th.'  appellant  and  Ceo.  W.  Collier  and  Levin 
Cambridge  sued  the  appellees,  Eli  J.  and  Benjamin  F.  Goar, 
upon  the  following  contract: 

"Jefferson  Township,  Tipton  County,  Indiana." 
"We  the  undersigned,  citizens  of  said  township,  agree  and 
bind  ourselves  in  case  either  of  us  is  drafted  into  the  service 
of  the  United  States,  to  pay  our  proportionable  amount  to  hire 
substitutes  to  till  our  places;  and  this  we  agree,  not  on  y  for  the 
present  impending  draft,  but  for  all  other  calls  that  may  be 
made  during  the  present  rebellion,  unless  a  majority  shall  agree 
to  abandon  the  above  arrangement. 

Given  under  our  hands  this  10th  day  of  Februarj-,  1865. 
(Signed.)  ^  ^   ^^^^^^^ 

Eli  J.  Go-VR, 
Benjamin  F.  Goar, 
Wm.   II.   Goodnight, 
Levin  Cambridge." 

It  was  alleged  in  the  complaint  that  all  these  parties  were  en- 

•See  also  Schiffer  v.  Eau  Claire,  51  Wis.,  085. 


236  PARTIES  TO   ACTIONS.  [ChaP.  II. 

rolled  in  said  township  and  liable  to  draft  then  impending; 
that  the  plaintiffs  and  the  defendant  Benjamin  were  drafted, 
and  that  the  defendant  Eli  was  not  drafted;  that  each  of  the 
plaintiffs  hired  and  paid  a  substitute  for  himself,  Collier  for 
fifteen  hundred  dollars,  and  Goodnight  and  Cambridge  each  for 
eleven  hundred  dollars ;  which  several  sums  were  reasonable  and 
necessary;  that  the  defendant  Benjamin,  by  failing  to  report 
himself  for  duty,  avoided  military  service  and  the  necessity  of 
procuring,  and  did  not  procure  a  substitute  for  himself;  and 
that  neither  of  the  defendants  has  paid  to  either  of  the  plain- 
tiffs anything  toward  defraying  the  costs  of  said  substitutes; 
though  the  same  has  been  demanded. 

A  demurrer  to  the  complaint,  assigning  the  want  of  sufficient 
facts,  amongst  other  causes,  was  sustained ;  and  this  is  the  only 
error  assigned. 

The  question  argued  is,  whether  the  plaintiff's  could  properly 
join  in  the  suit;  and  we  have  heretofore  held,  upon  full  consid- 
eration, that,  under  the  code,  that  question  is  raised  by  demurrer 
for  want  of  sufficient  facts.  Berkshire  v.  Schultz,  25  Ind.  523. 
In  that  case,  we  expressed  the  opinion,  that  the  rule  declared  in 
Mann  v.  Marsh,  35  Barb.  68,  that  "when  two  or  more  plaintiffs 
unite  in  bringing  a  joint  action,  and  the  facts  stated  do  not 
show  a  joint  cause  of  action  in  them,  a  demurrer  will  lie,"  was 
correct  and  best  comported  with  the  spirit  of  the  code. 

The  code  itself  is  not  exactly  definite  as  to  who  may  be  joined 
as  plaintiff's.  It  provides,  however,  that  judgment  may  be  given 
for  or  against  one  or  more  of  several  plaintiff's  (sec.  368),  which 
was  the  practice  in  equity,  though  it  was  otherwise  at  law.  It 
also  provides  (sec.  17),  that  all  persons  having  an  interest  in  the 
subject  of  the  action,  and  in  obtaining  the  relief  demanded, 
shall  be  joined  as  plaintiffs,  except  in  certain  cases  mentioned 
in  the  nineteenth  section.  Indeed,  the  code  seems  to  have  re- 
enacted  the  rules  which  had  prevailed  in  courts  of  equity,  as  to 
who  must  join  as  plaintiff's,  and  may  be  joined  as  defendants. 
But  as  to  those  cases  in  which,  in  equity,  plaintiffs  might  or 
might  not  have  joined,  at  their  option,  the  code  does  not  ex- 
pressly speak,  for  the  reason,  probably,  that  the  general  rule  in 
equity  in  relation  to  parties  plaintiff  was  not  founded  upon  any 
uniform  principle  and  could  not  be  expounded  by  any  universal 
theorem  as  a  test.  Sto.  Eq.  PI.  §  539.  And  it  may  have  been 
thought  safer,  therefore,  to  leave  each  case  to  be  decided  by  the 
courts  upon  authority  and  analogy.    That  it  was  intended  that 


Sec.  2.]  goodnight  v.  goar.  237 

the  rules  of  pleading  in  courts  of  oqiiitv  should  govern  the  sub- 
ject is  quite  evident  from  those  provisions  of  the  code  which  pre- 
scribe the  relief  which  ma^'  be  granted,  and  to  whom;  in  this 
respect  conforming  in  all  respects  to  the  established  practice  of 
those  courts — a  mode  of  administration  quite  impracticable  in  a 
great  many  cases,  unless  the  parties  might  be  as  in  chancery. 

The  present  in(}uiry,  is,  then,  in  view  of  the  considerations 
above  stated,  reduced  to  this :  could  these  plaintiffs  formerly  "V^'-^^ 
have  joined  in  chancery?  In  solving  this  question  we  may  be 
aided  by  considering  the  nature  of  the  contract  upon  which  the 
suit  is  brought^  The  obligations  which  it  imposes  are  strictly 
several^  each  party  for  himself  becoming  bound  in  a  certain' 
event  to  pay.  The  obligation^  thus  assumed  is,  under  the  facts  i.,  <a  \Va.  /v 
alleged,  to  each  one  of  the  plaintiffs  separately,  by  each  de-  _^;^  V>x>^ 
fendant,  for  one-fifth  of  such  sum  as  that  plaintiff  was  obliged  ^f^^^ 
tu  pay  for  a  substitute  for  himself.  This  proportion,  thus  due 
to  one,  cannot  be  either  increased  or  diminished  by  the  fact  that 
another  plaintiff'  is  aLso  entitled  to  recover  from  the  same  de- 
fendant a  like  proportion  of  the  sum  paid  by  him  for  a  substi- 
tute. Each  plaintiff  hgs  an  interest  only  in  compelling  the  de- 
fendants severallv  to  reimburse  him,  and  cannot  possibly  be 
affectecT  by  the~success  or  failure  of  anv  one  of  his  co-plaintiffs 
m~the  suiL.  Each  plaintiff  seeks  by  the  action  to  attain  an  ob- 
ject for  himself  exclusively, — the  recovery  of  so  much  money 
as  the  defendants  respectively  owe  him.  They  have  therefore  no 
common  or  joint  intrest  in  the  relief  sought,  which  is  the  object 
of  the  suit.  Nor  have  they  any  common  or  joint  interest  in  the 
subject  or  foundation  of  the  action,  which  is  the  failure  of  the 
defendants  respectively  to  pay  according  to  contract.  The  fail- 
ure to  pay  Goodnight  does  not  concern  any  other  plaintiff',  and 
so,  Uie  failure  to  pay  each  of  the  plaintiff's  is  a  matter  of  entire 
indift'erence  to  each  of  the  others.  If  each  two  of  the  five  per- 
sons to  this  agreement  had  mutually  contracted  by  a  separate 
writing  to  pay  one-fifth  of  whatsoever  sum  might  be  necessary 
to  procure  a  substitute  for  either,  if  drafted,  there  would  have 
been  twenty  separate  paper  contracts,  instead  of  one  as  now. 
It  was  a  matter  of  convenience  merely  that  one  writing,  ex- 
ecuted by  all,  should  have  been  adopted  to  evince  their  several 
undertakings;  but  it  imposed  exactly  the  same  liabilities  as  if 
twenty  writings  such  as  we  have  mentioned  had  been  used.  In 
the  latter  case  it  would  be  too  plain  for  doubt  that  each  plaintiff' 
must  sue  separately.     Why  should  it  be  otherwise  now?     There 


238  PARTIES   TO   ACTIONS.  [  ClI Al'.  II. 

is  certainly  no  good  reason.    The  statute  has,  it  is  true,  providedjul 
that  persons  severally  and  immediately  liable  on  the  same  in-u 
strument  may,  all  or  any  of  them,  be  sued  in  the  same  action  atl 
the  plaintiff's  option.    2  G.  &  H.  50,  sec.  20.     This  perhaps  au- 
thorizes each  of  the  present  plaintiffs  to  join  all  the  defendants 
in  one  suit.     It  is  but  the  old  equity  rule  as  to  defendants,  in 
cases  upon  a  joint  and  a  several  contract,  extended  by  the  stat- 
ute.    Story  Eq.  PI.  §  159.    It  may,  however,  be  worthy  of  con- 
sideration whether  this  statute  was  intended  to  apply  to  cases 
where  by  one  instrument  each  maker  becomes  singly  liable  for 
a  sum  for  which  no  other  maker  can  in  any  event  be  held.  But 
that  question  is  not  before  us,  nor  is  it  now  intended  to  express 
any  opinion  upon  it. 

In  Tate  v.  0.  &  M.  R.  R.  Co.,  10  Ind.  174,  it  was  said  that 
*'all  who  are  united  in  interest  must  join  (as  plaintiff's)  in  the 
suit,  unless  they  are  so  numerous  as  to  render  it  impracticable, 
while  those  who  have  only  a  common  interest  in  the  controversy, 
may,  one  or  more  of  them,  institute  an  action.  This,  however, 
must  not  be  understood  as  allowing,  in  all  cases,  two  or  more 
persons  having  separate  causes  of  action,  though  arising  out  of 
the  same  transaction,  to  unite  and  pursue  their  remedies  in  one 
action.  Several  plaintiffs  cannot  by  one  complaint  demand  sev- 
eral matters  of  relief  which  are  plainly  distinct  and  uncon- 
\  nected.  But  where  one  general  right  is  claimed,  where  there  isi 
one  common  interest  among  all  the  plaintiffs,  centering  in  the 
point  in  issue  in  the  cause,  the  objection  of  improper  parties 
Vannot  be  maintained."  This  statement  of  the  general  rules 
governing  the  subject,  though  quite  comprehensive,  is  perhaps 
as  specific  as  the  state  of  the  authorities  will  warrant.  The  mat- 
ter iSj  in  considerable  measure,  a  question  for  the  exercise  of  ju- 
dicial discretion  under  the  circumstances  of  each  particular 
case,  with  a  view  to  practical  convenience  in  the  administration 
^  of  justice. 
V.£;o>j-<  In  the  case  before  us  there  is  in  the  plaintiffs  no  community 
of  interest  in  any  matter  involved  in  the  suit;  no  right  com- 
mon to  all  is  claimed ;  every  thing  is  separate  save  only  that  the 
right  asserted  by  each  is  founded  in  a  contract  which  for  con- 
venience happens  to  be  upon  the  same  sheet  of  paper.  We  have 
failed  to  find  any  warrant  in  the  adjudged  cases  for  a  joinder  of 
plaintiffs  under  such  circumstances.  The  only  possible  sug^ 
gestion  in  its  favor  is  that  a  multiplicity  of  suits  would  be 
avoided;  but  even  that  is  more  apparent  than  real,  and  would. 


\ 


Sec.  2.]  goodnight  v.  goar.  239 

be  accomplished  only  in  name,  and  not  in  fact.     The  number  ^■'OwaZ-wv^ 

and  variety  of  separate  issues  to  be  tried  and  of  distinct  .jud^-  ,/jtr 
ments  to  be  rendered  would  not  be  diminished  in  the  least.  ^^   0 

The  judgment  is  affirmed  with  costs. 


OWEN  V.  FRINK. 

24  Cal.  171.      [1864.] 

By  the  Court,  Shafter,  J. 

This  is  an  action  of  ejectment  brought  to  recover  the  posses-    ^^^yLcX;^■'^-*^ 
sion  of  lands  situated  in  Suisun  Township,  county  of  Solano,     ^^-j^  ■^^^-^'^'^ 

The  defendants  answered  jointly,  disclaiming  all  title  to  or  o-<iA>^^yvN*Jt-o 
interest  in  the  premises  demanded,  except  as  to  a  certain  part  <^x.oos.->^  ,  >'^ 
thereof  particularly  described,  and  as  to  that  part  the  defend-  '^-^J-^  .s/— tU 
ants  aver  that  they  hold  and  occupy  it  by  title  derived  from  one  t/'-^'^^^'^^'-^  ' 
Brower.     That  Brower,  in  May,  1857,  made  a  verbal  contract  ^^"*^^  ^^^ 
with  the  plaintiff  for  the  purchase  of  the  particular  part  named, 
for  one  hundred  dollars,  payable  in  labor  as  the  plaintiff  should 
require,  or  in  cash,  at  Brower 's  election.     The  plaintiff'  bound 
himself  by  the  contract  to  execute  a  deed  of  the  lot  to  Brower, 
on  full  performance  on  his  part,  and  that  Brower,  in  pursuance 
of  the  contract,  went  into  possession  of  the  lot,  and  made  valu- 
able improvements  thereon.     That  he  performed  labor  for  the 
plaintiff,  under  the  contract  to  the  amount  of  thirty-five  dollars, 
and  always  worked  for  the  plaintiff"  when  recjuested  by  him  so 
to  do.    That  on  the  9th  of  June,  1858,  the  defendants  succeeded  . 

to  the  rights  of  Brower,  and  on  the  same  day  tendered  to  the  ^^^^'  ^^"^  ^ 
plaintiff"  one  hundred  dollars  and  presented  to  him  for  execution '^^*^''"^*^^  ^  t 
a  quit  claim  deed  running  to  them,  and  that  plaintiff  declined'^"^'"*'^'^  **"^  *^^ 
the  tender  and  refused  to  execute  the  deed.  Defendants  also'^^''^-**'-  V"^ 
aver  that  they  have  ever  been  ready  and  willing  to  pay  the  bal- 
ance of  the  consideration  due,  and  they  offer  to  pay  the  one 
hundred  dollars  tendered  into  court,  and  pray  that  the  plaintiff 
may  be  decreed  to  perform  his  contract  specifically. 

The  replication  denies  all  the  allegations  in  the  answer,  as- 
serts the  statute  of  limitations  as  a  defense,  and  the  statute  of 
frauds  also,  and  claims  that  the  rights  of  the  defendants,  if 
they  ever  had  any,  have  been  forfeited  on  the  ground  of  an  al- 
leged repudiation  by  them  of  the  plaintiff's  title  to  the  land 
manifested  in  speech  and  by  adverse  occupation.     The  trial  was 


240  PARTIES   TO   ACTIONS.  [ChAI*.  II. 

by  the  court,  and  on  the  findings  judgment  was  entered  for  the 
'w-*./-^  defendants  in  conformity  to  the  prayer  in  the  answer.  The 
\  -^    plaintiff  appeals  from  the  judgment  and  from  an  order  denying 

^''  ^^^~a  new  trial.     *     *     * 

«N.xo-\V.o->^  4.  It  is  claimed  by  the  appellant  that  inasmuch  as  the  answer 
^-^^'^'^'^'T^^  sets  up,  in  effect,  that  the  defendants  were  joint  assignees  of 
o^  ^>vAA-o  Brower's  right,  that  the  documentary  evidence  showing  that  one 
fc  <iji3^siAvj--*Ji.part  of  the  lot  affected  by  the  equitable  title  was  assigned  to 
Frink,  and  another  and  distinct  part  assigned  to  Peko,  should 
have  been  excluded  by  the  court. 

To  this  objection  there  are  two  answers: 
1.  The  objection  taken  to  each  document,  as  offered,  was  "ir- 
relevancy." The  objection  was  too  general.  (Dreux  v.  Domec, 
18  Cal.  83.)  Where  objection  is  taken  to  the  introduction  of 
evidence,  the  party  objecting  should,  as  a  general  rule,  state  the 
exact  point  of  his  objection.  (Kiler  v.  Kimball,  10  Cal.  267.) 
If  this  rule  had  been  observed  at  the  trial  of  this  case,  the  de- 
fendants, perhaps,  could  have  produced  proof  of  a  joint  assign- 
ment from  Crockett  to  them,  subsequently  executed. 

It  is  true  that  if  an  estate  should  be  sold  in  lots  to  different 
persons,  the  purchasers  could  not  join  in  exhibiting  one  bill 
against  the  vendor  for  a  specific  performance;  for  each  party's 
case  would  be  distinct,  and  would  depend  on  its  own  peculiar 
circumstances;  and,  therefore,  there  should  be  a  distinct  bill 
upon  each  contract.  (St.  Eq.  PI.  Sec.  272.)  But  that  is  not 
this  case.  Here  there  was  but  one  contract  to  convey,  though  the 
lands  affected  by  it  have  come  to  the  defendants  respectively  in 
divided  moities!!  The  general  rule  is,  that  unconnected  parties 
may  join  in  bringing  a  bill  in  equity  where  there  is  one  con- 
-0»  ^^rs-^^  nected  interest  among  them  all,  centering  in  the  point  in  issue 
jcvJ7^iS^^5L>  in  the  cause. 

»^vv-  3uvv  In  Fellows  v.  Fellows,  5  Cowen,  682,  the  bill  charged  that  the 

N>^,  )^<»;.A.*^  defendants  had  confederated  among  themselves,  and  with  the 
j_^_^j^X.  debtor  of  the  complainants,  to  defraud  the  complainants  by 
„^^^,s_y.r=i^. .  taking  a  conveyance  to  each,  in  separate  parcels,  of  all  the  debt- 
ors' real  and  personal  property,  without  consideration,  and  with 
intent  to  avoid  execution  upon  the  plaintiff's  judgment.  To 
this  bill  one  of  the  defendants  demurred  for  multifariousness. 
The  demurrer  was  overruled,  and  substantially  on  the  ground 
above  suggested.  In  the  case  at  bar  the  plaintiff  made  but  one 
contract  to  convey,  and  he  can  be  subjected  to  but  one  suit  upon 
it  for  damages  at  law,  and  to  but  one  for  specific  performance  in 


Sec.  2.]  owen  v.  frink.  241 

equity.  Though  the  defendants  are  not  jointly  interested  in  the 
contract,  in  the  narrow  sense  of  that  term,  yet,  they  have  a  com- 
mon interest  that  it  should  be  specifically  performed  to  the 
whole  extent  of  its  terras.  The  plaintiff  is  in  no  manner  preju- 
diced  bx_the_2oint  assertion  of  the  equitable  right  in  thean- 
swer,  for  the  judgment  will  be  not  only  a  joint,  but  several,  bar 
against  any  further  proceedings  upon  the  contract.     *     *     * 

Judgment  affirmed. 


-\ 


J^ 


PELLY  V.  BOWYER. 
7  Bush   (Ky.)  513.     [1870.] 

Judge  Hardin  delivered  the  opinion  of  the  court: 

The  appellant  became  the  admini.strator  of  the  estate  of  Jo- 
seph Bowyer  in  1858,  and  made  a  settlement  of  his  accounts  as 
such  in  March,  1861,  showing  a  balance  of  assets  in  his  hands 
of  $1,386.99  for  distribution,  of  which  the  ai>pellees — the  sev- 
eral children  and  grandchildren  of  William  Bowyer,  deceased,  a 
son  of  said  Joseph — were  entitled  collectively  to  one-third  part 
as  heirs  and  distributees  of  said  Joseph  Bowyer;  and  in  Septem- 
ber, 1868,  the  appellees  brought  this  action  jointly  against  the 
appellant  to  recover  an  alleged  balance  of  their  several  shares 
of  the  amount  found  due  by  the  .settlement  to  them  as  repre- 
sentatives Gi  AViiliam  Bowyer,  deceased,  as  aforesaid,  with  in- 
terest from  the  date  of  the  settlement.  The  suit  being  by  or- 
dinary proceeding  upon  the  appellant's  bond  as  administrator, 
and  it  having  resulted  in  a  joint  judgment  for  the  plaintiffs  for 
$209.07,  as  the  aggregate  balance  of  their  several  shares  with  in- 
terest as  claimed,  the  defendant  has  appealed  to  this  court. 

Proper  and  timely  objection  was  taken  in  the  court  below  to 
the  assumed  right  of  the  several  plaintiffs  to  recover  jointly, 
and  as  one  demand,  their  re.spective  claims  as  distributees. 
Whether  or  not  the  court  erred  in  overruling  this  objection  is 
the  principal  question  to  be  determined  on  this  appeal,  and  the 
only  one  we  deem  it  necessary  to  decide. 

The  Civil  Code  of  Practice,  section  36,  provides  that  "of  thel 
parties  to  the  action  those  who  are  united  in  interest  must  bef 
joined  as  plaintiffs  or  defendants";  and  there  can  be  no  doubtUi 
that  jn  equitable  actions  for  the  settlement    of    estates    several] « 
distributees   might  unite  as   plaintiffs.     But   except  in  a  par- 
"  16 


242  PARTIES  TO  ACTIONS.  [ChAP.  II. 

ticular  class  of  cases,  not  embracing  this,  we  know  of  no  author- 
ity  for  uniting  as  co-plaintiffs  several  parties  having  si-panite 
and  independent  rights  of  action  against  the  same  del'enihiiit,  or 
Tor  a  joint  recovery  thereon,  unless  the  objection  for  the  niis- 
joinder  be  waived.  ^iPseems  to  us  there  was  no  such  common 
object  or  unity  of  interest  in  the  plaintiffs  in  tills  case  as  was 
jecessary  to  entitle  them  to  sue  and  recover  by  a  joint  judgment 
their  several  claims  against  the  defendant,  and  the  judgment  is 
therefore  erroneoi^^/ 

Wherefore  the  judgment  is  reversed,  and  the  cause  remanded 
for  further  proceedings  or  orders  not    inconsistent    with    this 


opinion.* 


%^  K' 


McINTOSH  V.  ZARING. 

150  hid.,  301.     [1898.] 

McCabe,  J.  The  appellees  sued  the  appellants  in  the  Wash- 
ington circuit  court  to  recover  attorney's  fees  upon  a  written 
contract.  There  was  an  answer  filed,  leading  to  issues  of  law 
and  fact.  The  venue  was  changed  to  the  Jackson  circuit  court. 
A  trial  of  the  issues  of  fact  in  that  court  resulted  in  a  verdict 
and  judgment  in  favor  of  the  plaintiffs  in  the  sum  of  $7,500, 
over  appellants'  motion  for  a  new  trial.  Among  the  numerous 
errors  assigned  are  that  the  trial  court  erred  in  overruling  a 
demurrer  to  the  amended  complaint  for  want  of  sufficient  facts ; 
that  said  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action;  and  that  the  court  erred  in  overruling  the  de- 
fendants' motion  for  a  new  trial.  The  contract  sued  on  is  as 
follows;  "Ellen  Mcintosh  and  Andrew  J.  Mcintosh,  her  hus- 
band, have  this  day  employed  as  counsel  to  contest  the  wiW  of 
W.  C.  DePauw,  deceased,  and  to  conduct  all  legal  proceedings 
for  that  purpose,  Friedly  and  Giles,  of  Bedford,  Indiana,  Zar- 
ing  and  Hottel,  of  Salem,  Indiana,  and  C.  L.  &  H.  E.  Jewitt,  of 
New  Albany,  Indiana.  Suit  to  contest  said  will  is  to  be  imme- 
diately filed  and  prosecuted  with  all  reasonable  dispatch;  and 
for  all  their  services,  of  every  kind,  performed  in  relation  to 


♦Compare  State  v.  Thornton,  56  Mo.,  325,  in  which  a  number  of 
distributees  were  permitted  to  join  as  relators  in  an  action  in  the 
name  of  the  State  on  an  administrator's  bond,  where  their  interest 
had  not  been  severed  by  final  settlement  and  order  of  distribution. 


Sec.  2.]  m 'intosh  v.  zaring.  243 

said  suit,  said  attorneys  are  to  receive  the  following  compensa- 
tion, and  no  other,  viz. :    For  their  services  in  the  event  that  the^ 
will  of  W.  C.  DePauw  is  set  aside  and  Ellen  Mcintosh  declared  ^j^j;.^,^^    ,j^  ^ 
entitled  to  share  in  his  estate,  a  fee  equal  to  twenty-five  and  a         IT 
half  (25><  per  cent)  per  cent  of  the  value  of  the  estate  which  -t--^  « 

she  shall  thus  be  entitled  to,  and  does  receive;  and  in  the  event ^*^  t/«^rvir>-*^». 
of  a  compromise  or  adjustment  before  a  trial  is  begun,  whereby 
said  will  is  allowed  to  stand,  a  sum  equal  to  twelve  and  a  half 
per  cent  (12>^)  of  the  amount  so  received  or  stipulated  to  be 
received  by  her.  They  agree  to  pay  said  fee  as  follows:  One- 
third  to  Friedly  &  Giles,  one-third  to  Zaring  &  Ilottel,  and  one- 
third  to  C.  L.  &  H.  E.  Jewett.  Ellen  :\IcIntosh.  A.  J.  Mcintosh. 
Friedly  &  Giles.  C.  L.  &  H.  E.  Jewett.  Zaring  &  Ilottel." 
The  complaint  alleged  the  performance  of  the  contract  on  the 
appellees'  part,  and  that  the  suit  was  compromised  before  trial, 
b}  which  appellant  Sarah  E.  Mcintosh  received  from  the  estate 
of  said  W.  C.  DePauw  $250,000,  and  that  she  fraudulently  con- 
cealed the  knowledge  of  the  amount  so  received,  and  falsely  rep- 
resented to  them  that  she  had  only  received  $50,000  from  said 
estate  by  said  compromise ;  that,  relying  on  such  representations, 
the  appellees  had  settled  with  and  accepted  from  her  12^  per 
cent,  of  $50,000;  that  12^  j  per  cent  on  the  excess  received  by  her 
was  still  due  them,  and  remained  unpaid, — demanding  judg- 
ment for  $30,000  and  other  proper  relief.  It  is  also  alleged  that 
Charles  L.  and  Henry  E.  Jewitt  refused  to  join  as  plaintiffs, 
and  for  that  reason  they  were  made  defendants.  They  filed  an 
answer  disclaiming  all  interest  in  the  suit.  It  is  also  alleged  in 
the  complaint  that  the  appellees  John  A.  Zaring  and  Milton  B. 
Ilottel  were  attorneys  at  law,  engaged  in  the  practice  of  their 
profession,  under  the  firm  name  of  Zaring  &  Ilottel,  at  the  town 
of  Salem,  Washington  county,  Ind.,  and  that  appellee  Joseph 
Giles  and  the  said  George  \V.  Friedly  were  at  said  date  en- 
gaged in  the  practice  of  law  in  the  city  of  Bedford,  Lawrence 
count}',  Ind. ;  that,  after  the  performance  of  said  services  under 
said  contract,  said  George  W.  Friedly  had  died,  and  the  plain- 
tiff Edith  ]\I.  Friedly  had  been  appointed  administratrix  de 
boni^  110)1  of  the  estate  of  said  deceased. 

We  hold  that  the  contract  sued  on  did  not  create  a  joint  right 
of  action  in  all  the  plaintiffs,  and  hence  the  legal  effect  of  the 
written  contract  was  the  same  as  if  there  had  been  three  several 
and  separate  written  contracts  in  favor  of  each  of  the  three  sev- 
eral firms  or  groups  of  attorneys;  and  hence  we  hold  that  the 


244  PARTIES  TO  ACTIONS.  [ClIAP.  II. 

contract  itself  did  not  create  a  joint  right  of  action  in  said  at- 
torneys, and  cite  the  following  cases  supporting  that  conclu- 
sion: Goodnight  v.  Goar,  30  Ind.  418;  Tate  v.  Kailroad  Co.,  10 
Ind.  174;  Lippard  v.  Edwards,  39  Ind.  165;  Martin  v.  Davis, 
82  Ind.  41;  Harris  v.  Harris,  61  Ind.  117;  Elliott  v.  Pontius, 
136Ind.  641  (35N.  E.  562,  and36N.  E.  421).  *  *  *  *  * 
We  find  that  the  complaint  does  not  allege  that  Friedly  and 
t  '^^'^  Giles  were  partners  at  the  time,  but  it  does  allege  that  Zaring 

^.  '^o-tXA*.    and  Hottel  were  partners,  engaged  in  the  practice  of  the  law. 

yx   o.  It  is  contended,  however,  that  enough  appears  in  the  complaint 

ib^  ^  o.         and  in  the  written  contract  sued  on  to  disclose  that  Friedly  and 
,NA>wv.  .iA.^-3^  Giles  executed  the  contract  as  partners.    And,  in  support  of  this 
o.  >Q^.»5:^^W  contention,  we  are  cited  to  Cook  v.  Frederick,  77  Ind.  406;  Hen- 
^r-r^s^^^^^       shaw  V.  Root,  60  Ind.  220;  Telegraph  Co.  v.  Huff,  102  Ind.  535 
(26  N.  E.  85) ;  Crowell  v.  Bank,  3  Ohio  St.  406,  and  other  au- 
thorities.   We  have  examined  them,  and  find  they  do  not  sustain 
the  appellants'  contention  as  to  the  point  in  question.  The  man- 
ner in  which  the  contract  was  signed  by    Friedly    and    Giles 
W^t-       would  be  competent  evidence  as  tending  to  prove  the  existence 
^^JSIruJuXY^  of  a  partnership  between  them,  and  that  is  as  far  as  the  authori- 
ties cited  by  appellants   go.     Competent  evidence  tending  to 
prove  a  material  fact  is  not  the  fact  or  the  equivalent  thereof. 
The  fact  must  be  alleged  affirmatively  before  the  demurrer  ad- 
mits it  to  be  true.    A  demurrer  admits  as  true  only  such  allega- 
tions as  are  properly  and  sufficiently  pleaded.     Peyton  v.  Kru- 
ger,  77  Ind.  486;  Johnston  v.  Griest,  85  Ind.  503;  Platter  v. 
City  of  Seymour,  86  Ind.  323 ;  State  v.  Foulkes,  94  Ind.  493.  It 
must  therefore  be  held  that  the  complaint  does  not  allege  or  dis-^ 
close  the  existence_of  fl-  partnership  between  Friedly  and  Giles^, 
thereby  showing  a  want  of  sufficient  facts  to  constitute  a  cause 
T^a^tion  as  to  one  of  the  plaintiffs,  namely.  Edith  M.  Friedly^ 
administratrix_of_G^^^p:^  "W   FHpdIy,  deceased.    It  is  contended 
by  the  appellants  that  there  is  another  element  in  the  complaint 
having  the  same  effect  as  if  the  existence  of  said  partnership  be- 
tween Friedly  and  Giles  had  been  alleged  in  the  complaint ;  and 
^*.^  '^('^^    that  is  that  while  the  contract  sued  on  is  separate  and  distinct 
^v>,H^  'y^^  as  to  and  between  the  three  firms  or  groups  of  attorneys,  as  if 
r  <5.»-o>^  it  had  been  written  on  tnree  separate  papers,  and  each  separate- 

.s^LAo-^  W^'lv  signed~by  t.bp_ggveral  firms,  it  is  .joint  as  between  the  mem- 
bers^ of  eao'h  firm  or  group  of  attorneys:  and  this  contention,  we 
think  musF  prevail.  The  amount  stipulated  to  be  paid  to  Fried- 
ly and  Giles  was  hi  solido.    It  was  not  stipulated  what  amount 


Sec.  2.]  m'intosh  v.  z.\ring.  245 

of  the  share  to  be  paid  to  them  should  be  paid  to  either  Friedly 
or  Giles ;  and  the  same  is  true  as  between  the  other  two  firms  or 
groups  of  attorneys  mentioned    in    the    contract.     An  eminent 
author  on   Contracts  says:     "Where  the  payment  in  the  first 
place  is  of  one  sum  in  solido,  and  afterwards  to  be  divided  among 
the  payees,  there  generally,  the  interest  of  the  payees  is  joint; 
but,  where  the  first  payment  is  in  several  sums  among  the  sev- 
eral payees,  there,  generally,  their  interest  is  several."    1  Pai-s. 
Cont.    (5th  Ed.)    19.     The  interest^  therefore,  of  Friedly  and 
Giles,  even  in  the  absence  of  a  partnership  between  them,  is,  as 
between  themselves,  .joint  in  the  share  to  be  paid  to  them  under 
this  contract.     On  such  a  contract  the  law  vests  the  right  of 
action  exclusively  in  the  survivors  where  one  or  more  of  the 
joint  obligees  have  died.    1  Pars.  Cont.  (5th  Ed.),  31.    As  was 
said  by  this  court  in  Railway  Co.  v.  Adamson,   114  Ind.,  at 
pages  285,  286  (15  N.  E.,  7):     "The  question  with  which  we 
have  to  deal  is  important,  and  not  entirely  free  from  difficulty ;  odt. 
but,  after  the  most  careful  study  we  have  been  able  to  give  theCio-^j^,  «.-yiv,-<x: 
subject,  we  feel  bound  to  hold  that  the  Code  does  not  change  the  ^.  o-c)t»Jvv.  ^^ 
common-law  rule.     The  question  goes  back  of  the  procedure,  ^  "^^  t^^j^j--^ 
and  takes  up  the  element  of  the  right  itself.     The  right  the  ^^^  ^'"^^^  ^-^ 
statute  does  not  profess  to  change.    It  reaches  only  the  remedy.  ''^^^  ^->^^«^-^ 
In  the  case  of  a  joint  contract,  the  whole  right— the  unified  in-  ^^'''^ '  ^•'^'** 
terest — vests  in  the  survivors.    Upon  them  falls  the  entire  right. 
If  they  do  possess  the  entire  right,  then  they  are  the  real  parties  ^^^ 
in  interest,  since  it  is  inconceivable  that,  if  they  do  possess  the  ^ 
entire  right,  any  other  person  can  be  a  real  party  in  interest.  tkr^^^^^^^T^ 
The  principle  of  the  common  law  vesting  the  whole  right  in  the  ^^.^^^^^T^-^ 
survivors  is  not  changed  by  the  Code,  and,  so  long  as  the  prin-  ^^^^w-L  -JI 
ciple    remains   unchanged,   the    persons   possessing   this   entire  fr-r^Jurv  ,,^^  >^ 
right  must  be  regarded  as  the  real  parties  in  interest.     It  re-  <-«»— ij^K...^ . 
quires  legislation  to   abrogate  a   rule  of  law,  and  the  courts 
cannot  assume  the  functions  of  the  legislature.     Mr.  Pomeroy, 
who  as  strongly  as  any  one  urged  a  liberal  construction  of  the 
Code,  and  an  extension  of  its  provisions,  affirms  that  the  com- 
mon-law principle  has  not  been  abrogated.     In  discussing  the  vX*--*--  ^i.-».  c* 
question  he  said  :      'In  actions  tx  contractu,  all  the  persons  hav-   '^i  <'-*^>^<>^^^^-Q 
ing  a  joint  interest  must  be  made  plaintiffs;  and  when  one  of  ^"^'^'^ A-*-^^^ 
^em  dies,  the  action  must  be  brought  or  must  proceed  in  the   ^ '  X  ''*^^-^-*-*^ 
names  of  the  survivors.     The  personal  representative.^  of  tViP    i'^^'^^^^-  * 
deceased  obligee  or  promisee  cannot  be  joined  as  co-plaintiffs ;   •>..  .^  . .  « 


and  in  the  same  manner,  in  actions  ex  delicto  for  injuries  to    /iSu^v^^-^^Uvs* 


246  PARTIES   TO   ACTIONS.  [ClIAP.  II. 

personal  property,  all  the  joint  owners  must  unite,  and,  if  one 
of  them  dies,  the  action  is  to  be  prosecuted  by  the  survivors 
alone.    These  common-law  rules  remain  in  full  force.'  " 

It  follows  that  the  complaint  shows  upon  its  face  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action  in  favor 
of  one  of  the  plaintiffs,  namely,  Edith  M.  Friedly,  adminis- 
tratrix of  George  W.  Friedl3%  deceased,  the  same  as  if  the  com- 
plaint had  alleged  the  existence  of  a  partnership  between  Fried- 
ly and  Giles. 

Judgment  reversed. 

^^     ^' 

SEVIER  V.  RODDIE. 
51  Mo.,  580.     [1873.] 

Adams,  Judge,  delivered  the  opinion  of  the  court. 

This  case  came  here  on  a  demurrer  to  the  plaintiff's  second 
'i|^  amended  petition,  which  was  sustained  by  the  circuit  court. 
The  petition  alleges  in  substance  that  plaintiffs  were  the  sureties 
of  the  defendant  in  the  state  of  Tennessee  on  two  several  bonds 
for  payment  of  money;  that  a  judgment  was  obtained  in  Ten- 
nessee in  a  court  of  general  jurisdiction  against  the  plaintiffs 
and  defendant,  and  that  the  plaintiffs  as  the  sureties  of  de- 
fendant paid  the  amount  of  such  judgment  and  costs,  and  that 
afterwards,  and  without  any  notice  to  defendant,  a  judgment 
was  rendered  in  the  Tennessee  court  in  favor  of  plaintiff's,  for 
the  amount  they  so  paid  as  sureties  for  defendant;  and  the 
petition  sets  forth  the  statutory  laws  of  Tennessee,  which  allows 
judgments  of  this  character  to  be  rendered  in  summary  pro- 
ceedings in  favor  of  sureties,  jointly  or  severally,  and  the  peti- 
tion then  prays  judgment  for  the  amount  of  the  Tennessee  judg- 
ment, so  rendered  in  favor  of  the  plaintiffs  as  the  defendant's 
sureties. 

1.  If  it  was  the  design  of  the  plaintiffs  to  base  their  right 
"of  recovery  upon  the  summary  judgment  rendered  in  their 
favor  by  the  Tennessee  court  without  any  notice  to  the  defend- 
ant, it  is  clear,  to  my  mind,  that  they  have  no  standing  in  court. 
Whatever  force  a  judgment  mav  have  under  the  statutory  laws 
of  Tennessee,  it  can  have  no  extra-territorial  validity  so  as 
to  authorize  a  recovery  here.  (Salle  v.  Hays,  3  Mo.,  116;  Gil- 
lett  V.  Camp  and  Wife,  23  Mo.,  375;  Foote  v.  Newell,  29  Mo., 
400 ;  Smith  v.  McCutcheon,  38  Mo.,  415 ;  Roach  v.  Bums,  33  Mo., 


Sec.  2.]  seveer  v.  roddee.  247 

319 ;  Sto.  Conf .  Laws,  §  539 ;  Abbott  v.  Shepherd,  44  Mo.,  273 ; 
Latimer  v.  Union  Pac.  R.  R.  Co.,  43  Mo.,  105.) 

2.     If  the  plaintiff.s  are  suing  for  money  paid  by  them  as 
sureties  for  defendant  on  the  implied  assumpsit  of  the  defend- 
ant as^  principal  to^efund  the  amounts  so  advanced  b^;;_themj,  o^,^^ 
then  the  objection  that  they  cannot  join  as  plaintiffs  in  such  .  ^^"^y^""^ 
suit  is  well  taken.  ~Xt  least  there"  is  nothing  in  this  petition  )?»^'''^^^^   "^ 
to  show  that  the  defendant's  obligation  or  duty  towards  them,    t^^L^vwv^. 
was  a  joint  one.    They  did  not  undertake_as_2artners  or  jointl;^' 
to  become  the  sureties  of  the  defendant.     No  such  allegation  is 
made  in  thelDetitTon  and  the  natural  inference  therefore  is,  that 
each  mu.st  stand  onjiis  own  right  as  a  separate  surety.     They 
cannot  join  in  an  action  at  law  for  the  recovery  of  the  moneys 
advanced  by  them,  the  implied  promi.se  being  to  each  separately 
and  not  to  them  jointly  (Gould  v.  Gould,  8  Cowen,  168;  3  B.  & 
P.  225,  2  T.  R.  283).  ' 

In  suits  to  be  subrogated  to  the  rights  of  the  creditor  on  col-  /^^  "^"^vT^ 
laterals  held  by  them,  sureties  are  allowed  to  join  and  indeed  Y^'T"^'''^'^  "^ 
must  join,  because  in  equity  they  are  jointly  interested,  to  the  p^)  ^"^ 
extent  of  the  payments  made  by  each,  in  such  collaterals.  J  ^^kkvna^^ 

Judgment  atlirmed.  The  other  judges  concur,  except  Judge  |~'^^^'*'7jv^ 
Tories  not  sitting.  .  ,  ^'^  c^x.^^^ 

RIZER  V.  CALLEN. 
27  Kan.,  339.     [1882.] 

IIORTON,  C.  J. :  A.  W.  Callen,  John  Cross,  John  K.  Wright, 
Henry  Mitchell,  A.  Clough,  R.  E.  LawTenceson,  and  ]\Ioses  Wa- 
ters, with  others,  were  sureties  upon  the  official  bond  of  Robert 
O.  Rizer  the  county  treasurer  of  Davis  county.  His  term  of 
office  as  treasurer  expired  on  Oct.  12,  1880,  and  there  was  due 
from  him  as  such  treasurer  the  sum  of  $12,837.47.  Of  this 
amount  Rizer  paid  $1,248.55,  leaving  a  balance  due  of  $11,- 
588.92.  Afterward  the  parties  above  named,  with  other  sureties, 
were  sued  upon  the  official  bond  of  the  defaulting  treasurer  to 
recover  the  moneys  so  withheld  by  him,  and  the  suit  was  dis- 
missed by  compromise  as  to  the  said  named  parties,  upon  the 
payment  by  them  of  $3,500.  On  July  6,  1881,  the  sureties  who 
had  made  this  pa\Tnent  commenced  their  joint  action  against 
the   plaintiff   in   error    (defendant   below),   to  recover  $3,500, 


248  PARTIES   TO    ACTIONS.  [ChaP.  II. 

with  interest  thereon  from  the  5th  of  March,  \9,S\.  T'pon  trial 
judtrment  was  rendered  in  their  favor  for  $3.05.'?. 11 ;  and  the 
defendant  below  complains  of  this  jud^anent,  for  several  rea- 
sons. 

1.  It  is  contendeil  in  this  behalf  that  as  the  testimony  shows 
that  each  plaintill*  furnishetl  hLs  proportion  of  the  total  pay- 
ment, they  have  no  interest  in  common,  and  therefore  not  being 
united  in  interest  could  not  be  joined  as  plaintiffs. 

It  appears  from  the  record  that,  althoui^h  Hi/er  was  indebted 
ir  a  sum  exceeding:  $11,000,  and  an  action  had  been  brousrht 
against  all  of  his  sureties  upon  his  official  bond  for  thi-  recovery 
of  that  amount,  that  a  compromise  was  nuide  by  the  plaititilfs 
below,  whereby,  for  the  consideration  of  $3,500,  they  were  re- 
leased and  discharged   from  all   further  liability  on  the  bond. 
While  it  is  true  that  each  of  the  sureties  paitl  $500,  or  gave  notes 
that  were  taken  in  satisfaction  of  $500,  to  make  the  $3,500,  no 
one  surety  was  released   upon  tlie   payment  of  $500,   but   the 
whole  of  the  $3.500  was  jointly  paid  by  said  sureties  for  the  de- 
faulting  treasurer;    and^the    sureties    were    ioiii,yv    inten'sted 
in  making  the  payment  of  the  $3.500^  beeaiLse  the  release  was 
obtained,  not  upon  the  payment  of  $500  by  each,  but  upon  the 
joint  payment  of  the  $3,500.     If  the  compromise  with  the  com- 
missioners had  been  that  each  surety  upon  his  individual  pay- 
ment of  $500  would  be  released  and  discharged  from  all  liabil- 
ity, there  would  be  no  joint  or  common  interest  between  the 
plaintiffs;  but  as  these  sureties  agreed    i(nntlv   to  settle  j\vHh_ 
the  county  for  $3,500.  to  obtain  a  discharge  of  all,  pp.ving  the 
$3,500,  and  thereafter  performed  their  agreement   by  jointly 
paying  said  sum,  they  could  join  in  a  suit  to  reenver  fli..  >^i]m 
so  jointly  paid.    In  the  case  of  Tate  v.  R.  R.  Co.,  10  Ind..  174, 
to  which  we  are  referred  by  counsel  of  plaintiff  in  error,  the 
plaintiffs  were  the  owners  of  several  lots,  in   front  of  which 
the  railroad  company  erected  for  a  roadbed  in  the  street   an 
embankment  and  trestle-work,  which  excluded  them  from  the 
street.     The  court  there  held  that  the  plaintiffs,   though  not 
united  in  interest  with  each  other,  had  the  right  to  join  in  an 
action  to  compel  the  company  to  fill  up  the  street  on  each  side 
of  the  railroad  track  so  as  to  make  it  passable,  or  to  remove 
the  road.    We  do  not  think  this  case  is  of  any  force  against  the 
ruling  of  the  district  court.     The  other  authorities  cited  by  the 
same  counsel  are  to  the  effect  that  where  two  or  more  persons 
have   separate   causes   of   action   against   the   same   defendant,. 


Sec.  2.]  rizer  v,  callen.  249^ 

thout:h  arisinfr  out  of  the  same  transaction,  they  are  not  allowed 
to  unite  and  pursue  their  remedies  in  one  action.  Wk-  fully 
apree  as  to  the  law  thus  declared,  but  do  not  think  the  cause 
at  bar  controlled  by  it,  because,  under  the  compromLse,  a  certain 
payment  was  a^'reed  to  be  made  fur  the  dischar^'e  of  the  sun-tie.s, 
and  this  payment  was  jointly  made  by  them  for  the  discharge 
of  all  makinf?  the  paxiiient.  The  parties  to  this  action  wei'e 
united  in  interest  in  making  the  compromise — in  raising  the 
$3,500,  in  paying  the  $3,500,  and  therefore  had  a  right  to  be 
joined  a.s  plaintiffs.  (I  Parsons  on  Coiitract.s.  oth  ed.,  ch.  20, 
p.  20;  Appleton  V.  Bascom,  3  Mete,  WJ ;  Hopkins  v.  Lane 
(N.  Y.  Ct.  of  Appeals,  Jan.,  1882),  13  Rep.,  343;  May  v.  May, 
1  C.  &  P.,  44.)  In  th»'  la.st  cas.-  thf  action  was  brouL'ht  by  the 
plaintiffs  to  recover  the  sum  of  £44G  paid  by  them  as  bail  fof 
the  defendants.  To  make  up  this  sum  of  money,  each  of  the 
I»Iaintiffs  advanced  his  shar.'.  It  was  then*in  contended  by  de- 
fendants that  separate  actions  ought  to  have  bei-n  bi-ought  by 
each  of  the  plaintiffs,  because  the  money  paid  was  the  money 
(>{  each,  and  that  therr  could  not  be  a  joint  action  unless  it  was 
paid  from  a  joint  fund.  The  court  was  of  the  opinion  that  as 
the  plaintiffs  made  the  payment  to  the  defendants  in  one  sum, 
and  as  a  joint  payment,  thr  action  could  be  maintained  in  the 
form  in  which  it  was  brought.     •     •     • 

Judgment  affirmed. 

(b)      Partus   Whu  Must  Jtnn. 
DEWEY  V.  CAKEY. 
60  Mo.,  224.     [1875.] 

Wagker,  Judge,  delivered  the  opinion  of  the  court. 

The  petition  alleges  that  defendant  instituted  a  suit  by  in- 
junction against  Thomas  D.  Price,  Leroy  D.  Dewey  and  the 
plaintiff,  and  that  upon  executing  a  l>ond  to  them  a  temporary 
injunction  was  granted;  that  upon  a  hearing  of  the  cau.se  the  in- 
junction was  dissolved  and  the  petition  dLsmi.s.sed ;  but  no  assess- 
ment of  damages  was  had  at  the  time  of  the  dis.solution.  This 
action  is  now  instituted  by  the  plaintiff  alone  on  the  bond  to  re- 
cover damages  for  alleged  breaches. 

A  demurrer  was  su.stained  to  the  petition  because  the  (jther 
obligees  in  the  bond  were  not  made  plaintiffs. 


250  PARTIES   TO   ACTIONS.  [ClIAP.  II. 

Where  an  obligation  is  executed  to  two  or  more  jointly,  alii 
the  obligees  must  sue_upon  it.    I'Hey  cannot  separate  tlu^  liabil-f 
ity  and  bring  an  action  in^vor  of  each.     If  the  plaintill  can 
maintain  this  suit,  then  Leroy  D^^ewey  can  maintain  one,  ancL 
Thomas  D.  Price  still  another,  and  thus  the  defendantj\j|Lbe 
^^-°^      haragsed'by  three  suits  on  the  same  obligation  which  was  jointly 
;*^^*^^*^    ^l^dejo  the  three  persons.    By  our  law  all  contracts  are  jointj 
""^  "^     and  several   and  a  party  may  sue   any   one  or  more  debtors! 
^'^  '^^^  against  whom  he  has  a  demand.     But  the  principle  has  no  ap-l 
^SSt.       plication  to  the  obligees  in  a  contract,  who  must  sue  jointljj 
Sf  „A*w>.  asj  plaintiffs.     Where  the  contract  made   by  the   obligor  is  a_ 
'^^'     joint  one,  one  obligee  cannot  make  it  a  several  obligation  by 
^'^^   ^  i^ing  alone.     (Clark  v.  Cable,  21  ^lo.,  223;  Bobbins  v.  Ayres, 
^^10  Mo.,  538;  Wells  v.  Gaty,  9  Mo.,  5G1.) 

^     ^  To  permit  one  party  to  sue  might  result  in  great  injury  in  a 

X  V^^  case  of  this  kind.  One  plaintiff  might  recover  the  entire  pen- 
yt^  alty  of  the  bond,  yet  this  would  be  no  bar  to  another  action  by  a 
,^vv-  ^  plaintiff  who  was  not  a  party  to  the  suit ;  and  as  there  could 
be  no  apportionment  the  party  would  be  made  liable  for  abliga- 
tions  that  he  never  entered  into.  It  is  true  that  it  may  happen 
in  some  instances  that  one  obligee  has  sustained  more  damage 
than  some  of  his  co-obligees,  but  this  would  present  no  insuper- 
able objection,  as  under  our  practice  act  I  think  the  judgment 
might  be  adjusted  so  as  to  secure  the  respective  rights  of  the 
parties. 

The  judgmeni  must  be  affirmed ;  the  other  judges  concurring. 


Vrx_   Sul\- 


HUNTER  V.  YARBOROUGH. 
92  N.  Carolina,  68.     [1885.] 

0  Smith,  C.  J.:       In  the  month  of   October,   1854,   Priscilla 

^,,^^^_     Thomas,  being  then  the  owner  of  two  young  female  slaves,  by 
fe  AJL-      deed  of  gift  conveyed  them  to  her  married  daughter,  Isabella  C. 
r-*^^-**^   Hunter,  for  her  own  use  during  life,  and  as  trustee  to  hold  the 
"^  remainder  during  the  period  of  her  own  limited  possession  and 

]|^'''J[[^  enjoyment,  for  the  use  and  "benefit  of  all  and  singular  the 
children  of  the  said  Isabella  C.  Hunter,"  designating  by  name, 
as  such,  in  the  deed,  Jane  Elliott  and  Martha  Adaline.  Be- 
sides these  two,  other  children,  B.  W.  and  John  M.  Hunter,  the 


Sec.  2.  J  hunter  v.  yarborough.  251 

plaintiff,  were  born  during  the  marriage.  Upon  the  death  of 
her  hiLsband,  the  said  Isabella  C.  intermarried  with  the  defend- 
ant, Eli  Yarburuuj^'h,  by  whum  she  had  six  other  children. 

Some  time  previous  to  1860,  and  during  his  wife's  life,  the 
defendant  disposed  of  said  slaves,  and  their  issue  subsequently 
born,  as  his  own^  by  selling  them  to  be  removed,  and  in  assist- 
ing in  their  removal  beyond  the  limits  of  the  state,  received 
in  paynn-nt  therefor  $1,750  in  money. 

Isabella  C.  died  in  August,  1S80,  and  the  defendant  refusing 
to  account  for  said  remainder  or  any  part  thereof,  the  plaintiff 
assenting  to  the  sale,  seeks  in  this  action  to  charge  him  with 
the  principal  money,  and  recover  his  share  thereof. 

The  defendant  demurs  to  the  complaint,  for  that  upon  its 
face  it  appears  "that  the  court  has  no  jurisdiction  of  the  subject 
of  the  action." 

Upon  the  hearing  of  the  Issue  raised  by  tiie  deiinirrer,  it  was 
overruled  and  the  defendant  allowed  to  answer  the  complaint, 
from  which  judgment  the  defendant  appeals. 

The  demurrer  fails  to  specify  the  trrounds  of  objection  to  the  "Tv;o  <y^>o-v.^ 
complaint,  as  it  should  do,  according  to  the  construction   put  (ki^NyvdAT^^a 
upon  the  statute  in  Love  v.  Commi.ssioners,  64  N.  C,  706,  and  in /v-^iA^<*^v 
its  present  form  was  wholly  needless,  since  the  want  of  juris- 
diction cannot  be  waived  and  may  be  taken  advantage  of  at  any 
time,  even  in  this  court.     Code,  §^  240,  242 ;  Gaskill  v.  Commis- 
sioners, 85  N.  C,  278 ;  Tucker  v.  Baker,  86  N.  C,  1 ;  Hawkins 
V.  Hughes,  87  N.  C,  115. 

But  in  the  argument  supporting  the  demurrer,  it  is  contended 
the  action  is  founded  on  an  implied  contract  to  keep  and  pay 
over  the  principal  funds  of  tho.se  entitled  in  remainder  at  the 
expiration  of  the  precedent,  particular  e.state,  and  as  the  part 
claimed  by  the  plaintiff  is  less  than  .$200,  cognizance  of  the 
claim  resides  in  the  court  of  a  justice  of  the  peace. 

This  is  a  misconception  of  the  action  as  presented  in  the  com- 
plaint.    A.ssuming  the  defendant's  obligation  to  rest  upon  an 
implied  contract,  it  is  a  contract  to  account  for  and  pay  over  the 
entire  sum  received  to  those  entitled,  and  not  a  series  of  con-^^\^J^^  o^ 
tracts  to  pay  over  to  each  his  and  her  ratable  part  of  it.  A-^^j^*^  ^ 

This  view  of  the  case  shows  that  all  the  remaindermen,  per-  v  r^ 

sonally  or  by  representation,  ought  to  be  parties  to  the  cause,   .  .^ 
so  that""orre"recovery  may  Ix'  effected  for  all  and  the  defendant 
not  exposed  to  a  succession  of  separate  suits  by  each. 

The  demurrer^  if  taken  to  the  defect  of  parties  plaintiff,  would  ^\^^^t^]\3^ 


252  PARTIES   TO   ACTIONS.  [ClIAl'.  II. 

have  been  effectual j  Code  §  239,  par.  4 ;  Gill  v.  Young,  82  N.  C, 
273. 

The  action,  however,  rests  upon  an  equity  of  the  persons  en- 
titled in  remainder  to  waive  the  tortious  disposition  of  the 
slaves  and  follow  and  secure  the  substituted  fund  resulting  from 
the  sale. 

In  McKeil  v.  Cutlar,  4  Jones  Eq.,  381,  Pearson,  C.  J.,  uses  this 
language:  "We  are  satisfied  that  Catharine  Cutlar,  the  de- 
fendant's intestate,  sold  the  slave  out  and  out,  with  the  inten- 
tion that  he  should  be  run  off  and  taken  to  parts  unknown,  and 
that  she  received  $500  as  the  price.  Having  only  a  life  estate, 
it  was  against  conscience  for  her  to  sell  the  absolute  interest, 
except  upon  the  footing  that,  as  the  charge  of  a  criminal  of- 
fense, which  was  made  against  the  slave,  rendered  it  expedient 
for  the  remainderman,  as  well  as  for  herself,  to  sell  him,  she 
would  do  so,  and  hold  the  price  for  their  mutual  benefit.  This 
is  a  clear  equity,  which  the  plaintiff  has  a  right  to  enforce 
against  the  personal  representative  of  Mrs.  Cutlar  to  the  extent 
of  the  assets." 

After  a  full  discussion  of  the  learning  on  this  subject,  and 
an  examination  of  the  adjudged  cases  not  found  to  be  in  entire 
harmony,  the  result  is  arrived  at  and  announced  as  the  true 
doctrine  by  our  late  associate,  Mr.  Justice  Ruffin,  in  Isler  v. 
Isler,  88  N.  C,  576:  "The  court  feel  at  liberty  to  adopt  their 
own  rules  with  regard  to  the  matter,  and  to  them  none  seems 
as  simple  or  just  as  the  one  laid  down  in  McKeil  v.  Cutlar, 
supra,  which  was  also  recognized  in  Cheshire  v.  Cheshire,  2  Ired. 
Eq.,  569,  allowing  the  price  to  represent  the  slave  and  to  be 
enjoyed  by  the  life-tenant  during  the  residue  of  his  life,  and 
then  without  abatement  to  him  in  remainder;  provided  he  shall 
elect  to  ratify  the  sale  and  take  the  fund."  These  suits  were 
in  the  court  of  equity  and  the  fund  was  pursued  and  reached 
in  the  hands  of  the  life-owner,  as  a  trustee,  liable  to  account 
for  the  money  as  such. 

The  present  case  is  stronger,  for,  besides  the  relations  of  the 
owners  of  the  particular  towards  the  owners  of  the  remainder 
estate,  in  her  deed,  the  donor  proceeds  in  direct  words  "to  con- 
stitute and  appoint  the  said  Isabella  C.  Hunter,  a  trustee  to- 
hold  the  said  negroes  during  her  natural  life  for  all  and  singu- 
lar the  children  of  said  Isabella  C.  Hunter,  their  heirs  and  as- 
signs forever." 

The  demurrer  was,  therefore,  promptly  overruled,  and  the 


Sec.  2.]  hunter  v.  yarborough.  253 

necessary  parties  can  be  made  in  the  court  below,  and  the  defect 
already  noticed  in  this  respect  removed. 

Let  this  be  certified  for  further  proceedings  in  the  Superior 
Court. 

No  error.  Affirmed* 


V" 


^^^__.,^^^  v-^ 


JONES    V.    FELCH. 
3  Bosworth  (\.  Y.  Supr.),  63.     [1858.] 

This  is  an  appeal  by  the  defendant  from  a  judorment  in  favor 
of  the  plaintitf,  upon  a  demurrer  to  the  complaint,  rendered  in 
Jan.,  1858. 

The  complaint  sets  forth  that  on  the  22d  of  April.  1856,  the 
defendant  delivered  and  executed  an  agreement,  in  writing,  unto 
the  father  of  the  plaintilT,  whereby  he  hired  and  took  of  him 
certain  premises  therein  described,  for  the  term  of  three  years 
from  the  first  of  May,  1856,  the  rent  payable  fiuarterly.  That 
the  lessor  died  on  the  first  of  May,  1857,  being  the  owner,  in  fee, 
of  the  demised  premises;  that  he  left  the  plaintiff,  and  five 
others  who  were  named,  his  children  and  sole  heirs  at  law ;  that 
the  rent  which  fell  due  on  the  first  of  November,  1857,  had  not 
been  paid  by  the  defendant,  nor  any  portion  of  it;  that  the 
amount  was  $500,  of  which  the  plaintiff  is  entitled  to  one-sixth, 
or  $83.33,  for  which  sum  he  demanded  judgment. 

The  defendant  demurred,  on  the  ground  that  there  was  a  de- 
fect of  parties  plaintiff;  that  the  plaintiff  could  not  maintain 
this  action  without  joining  with  him  his  co-heirs-at-law. 

The  demurrer  was  heard  before  Mr.  Justice  Slossox,  who 
overruled  the  same,  and  gave  liberty  to  the  defendant  to  answer 
upon  pajTnent  of  costs  within  ten  days.  If  this  was  not  done,  a 
judgment  was  to  be  entered  against  him  for  the  amount  claimed, 
with  interest  and  costs.  The  defendant,  not  having  answered, 
a  judgment  was  entered,  from  which  the  present  appeal  is 
taken. 

By  the  court,  Hoffman.  J.:  The  first  inquiry  is,  what  was 
the  rule  before  the  code? 

It  was  well  settled  at  common  law  that  tenants  in  common  of 


•Accord:     Edwards  v.  Welton,  25  Mo.,  378;  Seay  v.  Sanders,  88  Mo. 
App.,  478. 


{ 


254  PARTIES  TO  ACTIONS.  fCHAP.  II. 

a  reversion  of  land  upon  lease  might  either  join  in  an  action  for 
rent  or  bring  several  act  ions. 

In  Martin  v.  Crompe  (I  Lord  Raymond,  340),  Holt,  JiLsticc, 
said :  ' '  That  if  there  are  two  tenants  in  common  of  a  reversion 
expectant  upon  a  term  of  years,  upon  which  rent  is  reserved, 
they  may  join  in  debt  for  the  rent,  or  sever;  and  that  one  of 
them  may  have  an  action  for  a  moiety  of  £20  rent,  but  not  for 
£10;  and  so  it  had  been  adjudged. 

Midgely  v.  Lovelace  (Carthews'  Eep.,  289),  is  to  the  same 
effect. 

This  apparently  artificial  distinction  as  to  the  form  of  the 
action  is  noticed  by  Parke,  Baron,  in  Thomas  v.  Thomas  (5 
Wels.,  H.,  and  Gordon  Exch.  Rep.,  33).  He  appears  to  recog- 
nize it  and  states  the  rule  itself  to  be  undoubted  law. 

In  Henniker  v.  Turner  (4  Barn.  &  Cres.,  157),  Chief  Jus- 
tice Abbott  treats  the  distinction  as  unsubstantial,  but  avoids  it 
by  holding  it  inapplicable  to  an  action  of  covenant,  even  if  it 
were  applicable  to  an  action  of  debt.  The  rule  that  one  tenant 
in  common  could  sue  for  his  aliquot  i)ortion  of  rent  reserved  was 
expressly  decided,  the  ease  raising  the  very  point  on  special  de- 
murrer. See  further.  Beer  v.  Beer  (9  Eng.  L.  and  Eq  Rep 
468). 

The  rule  that  the  rent  incident  to  a  reversion  becomes  appor- 
tioned by  a  grant,  or  by  a  descenTis  stated,  and  the  reasons  well 
explained  in  Gilbert  on  Rents,  p.  172  (Law  Library,  vol.  20,  p. 
54).  He  states  that  not  only  the  reversion  may  be  disposed  of 
in  parts,  as  in  its  nature  severable ;  but  the  rent,  as  incident  to 
the  reversion,  may  be  divided  also.  The  elementary  writers  also 
lay  down  the  rule  with  great  unanimity.  (Crabbe's  Law  of 
Real  Property,  §2318,  a;  Gary  on  Landlord  and  Tenant,  214; 
Chitty  on  Pleadings,  vol.  1,  566;  Bradby  on  Distresses,  p.  41.)' 

In  Crosby  v.  Loop  and  others  (14  111.  Rep.,  330),  the  court 
say :    "  0]a_the  deatb_oLthe  lessor,  the  rent  has  to  be  apportioned 
among  the  heirs  on  whom  the  estate  is  cast.    In  all  cases  of  the 
apportionment  of  rent,  it  irthe  duty  of  the  tenant  to  pay"ii^ 
party  the  proportionof^iie  renflo  wluclilie  is  entitT^4.     TlnsT 
liabilily  of  the  tenant  forms ~an  exception  to  the  rule  that  a r  ' 
V  entire  contract  cannot  be  apportioned,  and  that  a  debtor  cannol ' 
be  compelled  to  pay  a  single  demand  in  parcels,  to  several  per- 
sons.    The  exception  had  its  origin  in  reasons  of  policy  and 
convenience,  and  has  been  long  and  firmly  established." 

The  statement  of  the  rule  by  Justice  Nelson,  in  Cole  v.  Pat- 


VfsK^    ^v^»-  <:l>; 


Sec.  2.]  jones  v.  felch.  255 

terson  (25  Wend.,  456),  is  then  clearly  warranted  by  author- 
ities, even  admitting  that  the  case  itself  is  not  decisive,  and  is 
open  to  the  criticism  of  counsel. 

The  difference  between  tenants  in  common  and  co-parceners  is 
shown  in  the  case  of  Deeharms  v.  Ilorwood  (10  Bing.,  526). 
The  court  say :  ' '  The  authorities  all  agree  that  whatever  be  the 
number  of  parceners,  they  all  constitute  one  heir.  They  are 
connected  together  by  unity  of  title  and  unity  of  interest,  and 
one  of  them  cannot  distrain  without  joining  the  others  in  the 
avowiy."  The  hardship  of  being  exposed  to  three  actions  in- 
stead of  one  was  alluded  to  by  Chief  Justice  Tindal. 

The  counsel  of  the  appellant  has  taken  the  distinction  that,  al-  ^'^^^'H*"  ""'^"'^J^^ 
though  tenants  in  common  could  sever  and  bring  separate  ac-*"'^''^*^  i^v©^^.^ 
tions,  yet  coparceners  could  not ;  that  a  tenancy  in  common  at  ^^***^*-^  '^ 
common  law  could  only  be  created  by  purchase  or  act  of  the   ^  "^ 

party,  and  could  not  be  by  descent.  Hence  that,  at  common 
law,  these  heirs  could  not  be  tenants  in  common,  but  would  take 
only  as  coparceners  by  custom,  some  being  males,  and  then  miLst  ^ 

sue  jointly.  In  other  words,  as  these  heirs  could  not  have  bcHMi 
tenants  in  common  at  common  law,  they  have  no  title  to  the 
privileges  given  to  such  tenants  by  the  law  to  sue  separately. 

But  the  answer  appeal's  to  be  decisive,  that  since  the  year    ^  Loj^r 

1786,  under  the  statute  of  descents  of  that  year,  the  heirs  of  a 
party  seized  are  tenants  in  common.  The  rules  applicable  to 
such  tenants,  when  constituted  by  devise  or  grant,  are  eiiually 
applicable  to  them  when  constituted  by  descent,  unless  some- 
thing arises  out  of  the  new  method  of  creating  such  a  tenancy 
which  might  prevent  it.     None  such  can  b<.'  suggested. 

The  next  question  is,  whether  the  code  has  varied  this  previous 
rule. 

The  117th  section  provides  that  all  pers(.)ns  having  an  interest 
in  the  subject-matter  may  be  joined  as  plaintiffs.  This  would 
sanction  an  action  by  all  the  heirs  in  accordance  with  the  opinion 
of  Lord  Holt,  before  cited ;  but  does  no  more  than  sanction  it. 

The  119th  section  is,  that  of  the  parties  to  the  action,  those 
who  are  united  in  interest  must  be  joined  as  plaintiffs  or  de- 
fendants. It  provides  for  the  exceptional  case  of  a  refusal  to 
join  as  a  plaintiff. 

We  apprehend  that  this  union  of  interest  refers  to  such 
cases  as  those  of  joint  tenants,  co-trustees,  partners,  joint  own- 
ers or  joint  contractors  simply ;  where,  in  fact,  a  separate  judg- 
ment in  favor  of  one  of  them  would  not  be  proper  on  the  case 


.'V^O-uO    to^X/v 


256  PARTIES   TO   ACTIONS,  [ChAP.  II. 

as  stated  in  the  complaint.  It  is  true  that,  under  section  274,  a 
separate  judgment  may  be  had,  in  a  case  which  does  distinctly 
present  a  joint  cause  of  action  only;  but  this  is  only  when  on 
the  proofs  it  turns  out  that  a  separate  action  could  have  been 
maintained. 

But  on  a  demurrer  to  a  complaint,  we  apprehend  that  the  test 
of  the  unity  of  interest  intended  in  the  119th  section  is,  that 
joint  connection  with,  or  relation  to  the  subject  matter,  which, 
by  the  established  practice  of  the  common-law  courts,  will  pre- 
clude a  separate  action. 

We  think  that  the  judgment  must  be  affirmed  with  costs. 

Ordered  accordingly. 


'^^jC'X        OL><»os^>v>^^. 


HOPKINS  V.   LANE. 

87  N.  Y.,  501.     [1882.] 

.  v^  Appeal  from  judgment  of  the  general  term  of  the  supreme 

'*A^"*'-***- court,  in  the  third  judicial  department,  entered  upon  an  order 
^  ^5^j>--^    made  September  8,  1874,  which  denied  a  motion  for  a  new  trial, 
*^  \       and  directed  judgment  in  favor  of  the  plaintiffs  on  a  verdict. 
L  ^<VA70-  Earl,  J.:     This  action  was  brought  to  recover  on  a  prorais- 

Z*"^  ''\        sory  note  given  in  part  payment  of  cheese  sold  by  the  plaintiffs 
'"•"'^■*'*^>*''  to  the  defendant,  Daniel  W.  Lane,  and  to  Darius  W.  Benjamin 
'^*^'         and  Quincy  Matthewson.     The  cheese  was  delivered  and  each 
of  the  purchasers  gave  a  note  for  his  share  of  the  purchase 
^s,'.  V^yvv^k.  money.     This  note  was  given  by  Daniel  W.  for  his  share,  and 
'-"•^'*^  '^    was  signed  by  Victory  L.  Lane  as  surety  for  him.    The  defend- 
a  cV->-i-«A^   ants,  in  their  answer,  set  up  a  counter-claim  for  breach  of  war- 
ranty and  fraud  in  the  sale  of  the  cheese.     One  of  the  grounds 
upon  which  the  defendants  were  defeated  as  to  the  alleged  coun- 
ter-claim at  the  trial  was  that  they  could  not  avail  themselves 
^  jUftV  •**-»Qf  j^^  2^  \i  belonged  to  the  three  purchasers  jointly.     The  an- 
"^  *^         swer  alleged  that  the  sale  of  the  cheese  was  to  the  three  as  joint 
*'**'*'*^^^''^purchasers^   and  that   allegation   was   sustained  by   the   proof. 
"*    ^,^,^^^,^     There  was  no  proof  showing  that  there  was  a  separate  contract 
V^'Vito       with  each  purchaser  or  a  separate  warranty  to,  or  fraud  peir 
;^03L5^,Wx  petrated"upon,  each  purchas'er!    i^'or  the  convenience  of  the  pur- 
;siX,,,ar>>>>-o>. .chasers,  and  with  the  consent  of  the  sellers,  the  cheese  was  paid 
for  by  the  separate  notes  properly  secured  of  the  purchasers, 
and,  after  the  notes  were  thus  given,  there  remained  no  joint. 


Sec.  li.j  HOPKINS  v.  lane.  257 

obligation  to  pay  for  the  cheese,  simply  because  it  had  been  paid 

^^.    Payment  in  this  mode,  however,  did  not  affect  the  contract 

of  purchase,  or  the  relation  of  the  parties  growing  out  of  the 

joint   purchase.     Any  claim,  therefore,   for  damages,   growing 

out  of  the  breach  of  warranty  or  the  fraud,  belonged  to  the 

three  purchasers  jointly  and  could  not  be  used  by  one  of  them 

as  a  counter-claim.    One  of  them  could  not  have  separately  sued 

the  plaintiffs  to  recover  such  damages,  and  hence  one  of  them 

separately  cannot  set  up  such  damages  as  a  counter-claim  under  *^Mf>-  r-^A/^^ 

section  150  of  the  code  of  procedure.     As  there  was  no  defense  ^^^^>^*-^'^ 

to  this  note,  except  by  way  of  counter-claim,  Daniel  W.  Lane  ^  V^i-o-«^ 

was  obliged  to  pay  it,  and  the  claim  for  damages  on  account  of  ^^^T^^^';^-*'*^^ 

the  breach  of  warrant  and  fraud  could  be  enforced  only  by  an  ''^^^^^'^''^ 

action  in  the  name  of  all  the  purchasers  against  the  sellers.     If         \x\^^ 

however,  any  one  of  the  purcha.sers  refused  to  join  as  plaintiff  ^A^,,^,^  a^ 


in  such  an  action,  he  could  be  made  a  defendant.    "We  are,  there- 
fore, of  the  opinion  that  the  judgment  should  be  affirmed  with 

costs. 

Judgment  affirmed. 

DEPUY  V.   STRONG. 

3  Kcijcs  (y.  y.J,  ti(>3.     \1S67.] 

Grover,  J.:  The  iaw  in  this  state  prior  to  the  enactment  of 
the  Code  was  settled,  that  tenants  in  ccmimon  mugt  all  join  in  an 
action^  of  trespa.ss  to  recover  damages  for  injuries  to  real  estate 
held  in  common.  (Hill  v.  Gibbs,  and  cases  cited,  5  Hill,  56.) 
The  rule  applied  to  personal  and  not  to  real  actions.  It  was 
founded  upon  the  idea  that  it  was  an  injury  to  the  possession, 
and  that  as  the  possession  of  one  tenant  in  common  was  re- 
garded  as  the  possession  of  all,  the  injury  was  to  their  joint 
right,  and  therefore  alTmust  join  in  prosecuting  the  remedy. 
The  law  having  been  so  determined,  it  must  still  be  .so  held  un- 
less changed  by  the  legislature.  It  is  claimed  that  section  111 
of  the  Code  has  changed  the  law  in  this  respect.  That  section 
provides  that  everv-  action  must  be  prosecuted  in  the  name  of  th(^ 
real  party  in  interest,  with  exceptions  not  applicable  to  the 
present  case.  The  only  change  effected  by  this  provision  was  to 
enable  courts  of  law  to  treat  assignments  of  certain  choses  in 
action  as  transferring  the  legal  title,  which,  at  common  law, 
17 


•i>^ 


1^\0S/VN^V^ 


258  PARTIES   TO    ACTIONS.  [CilAl*.  11. 

transferred  only  the  equitable.     The  rule  at  the  common  law 
was,  that  the  owner  of  the  legal  title  must  sue.    Section  110  hcu> 
"^^^Zx^^^^lsj^fL.^^  think)  no  bearing  upon  the  question  in  this  easel    TFat  pro- 
jvv  ^1*1(7/  vides  that  those  united  in  interest  must  be  joined  as  plaintiffs 
^  ■C[>..i;i    or  defendants;  but  if  the  consent  of  any  one  who  should  have 
~-^  c/s^^^  joined  as  plaintiff  cannot  be  obtained,  he  may  be  made  a  de- 
T''"^'^'^  fendant;   the   reason    thereof   being    stated    in    the    complaint. 
j!^^%^  This  clearly  does  not  authorize  the  omission  of  a  party  whicjj 
"^"^^^^^  the  existing  law  requirea.    it  is  said  that  it  would  be  incongru- 
ous  to  make  one  tenant  in  common  a  co-defendant  with  a  tres- 
passer, upon  his  refusal  to  join  as  plaintiff.     This  is  so,  but 
the  answer  is,  that  that  is  the  only  remedy  provided  by  the 
Code  for  a  case  when  before  if  he  refused  to  join  as  plaintiff', 
his  co-tenant  could  not  maintain  an  action  at  all  unless  the  court, 
upon  the  special  facts,  permitted  his  name  to  be  used  as  plain- 
tiff.    I  think  it  clear  that  the  Code  has  not  chnnypd  tbo  law  as 
to  the  requisite  parties  in  this  class  of  actions.     The  question 
arises  as  to  the  mode  in  which  the  defendant  may  avail  himself 
of  the  omission  to  join  a  co-tenant  as  plaintiff".     Previous  to  the 
Code,  this  could  only  be  done  by  demurrer  where  the  defect  ap- 
peared upon  the  margin,  or  in  case  it  did  not,  by  plea  in  abate- 
ment.    The  latter  plea  has  been  abolished  by  the  Code.     The 
only  mode  provided  for  presenting  a  defense  being  by  demurrer 
or  answer,  section  144,  among  other  things,  provides  that  a  de- 
fendant may  demur  to  the  complaint  when  it  shall  appear  upon 
the  face  thereof  that  there  is  a  defect  of  parties  plaintiff  or  de- 
fendant.   In  the  present  case,  the  defect  of  parties  plaintiff"  did 
appear  upon  the  face  of  the  complaint.     The  plaintiff"s  alleged 
that  they  owTied  an  undivided  interest  in  the  land.    The  remain- 
ing interest  must  of  necessity  have  been  owned  by  others,  either 
as  joint  tenants  or  tenants  in  common  with  the  plaintiffs.     In 
either  case  the  co-tenants  were  necessary  parties.     One  mode  of 
presenting  this  question,  provided  by  the  Code,  was  by  demur- 
ring to  the  complaint.     This  the  defendants  interposed.     The 
^^^''^  \    .     Special  Term  erroneously  overruled  it,  and  gave  the  defendants 
\  ^^^^^^  leave  to  answer.     The  defendants  answered,  setting  up,  among 
other  defenses,  the  defect  of  parties  plaintiff.    This  was  an  aban- 
donment of  the  demurrer,  and  placed  the  case  in  the  same  posi- 
tion as  though  none  had  been  interposed.    It  remains  to  inquire 
whether,  in  case  the  defect  does  appear  upon  the  face  of  the  com- 
plaint, it  can  be  made  available  by  answer.    This  inquiry  is  an- 
swered by  section  147.     That  provides  that  when  any  of  the 


Sec.  2.  J  depuy  v.  strong.  259 

matters  enumerated  in  section  144  do  not  appear  upon  the  face 
of  the  complaint,  the  objection  may  be  taken  by  answer.  This 
clearly  implies  that  when  the  defect  appears  upon  the  face 
of  the  complaint,  it  Ls  available  only  by  a  demurrer  to  the  com- 
plaint. This  beiu^r  so,  settin«^  it  up  in  the  answer  is  a  mere 
nullity.  The  defendants^  instead  of  answering,  should  have 
appealed  from  the  judirment  ordered  ujion  the  demurrer.  It 
has  been  repeatedly  held  by  this  court  that  defects  of  this  de- 
scription must  be  insisted  upon  in  the  mode  provided  by  the 
Code,  or  they  are  waived.     (33  N.  Y.,  43;  32  id.  635.) 

The  judgment  appealed  from  must  be  reversed  and  a  new 
trial  ordered.  If  the  defendant  has  any  relief  under  the  pecu- 
liar facts  of  this  case,  it  is  by  obtaining  leave  in  the  Supreme 
Court  to  withdraw  his  answer,  and  let  judgment  be  entered 
upon  the  demurrer. 

Judament  reversed. 

BROWN   V.   WARREX. 
16  Nev.,  22S.     [1881.] 

Appeal  from  a  judgment  non-suiting  the  plaintiff  in  an  action 
of  ejectment. 

Leonard.  C.  J. :  *  *  *  And  lastly,  it  is  urged  in  support 
of  the  non-suit,  that  if  plaintiff  has  any  title  or  interest  in  the 
lands  in  dispute,  he  holds  the  same  as  t«'nant  in  common  with 
Boyle,  and  that  he  can  not  maintain  this  action  without  uniting 
his  co-tenant  as  a  party  with  him.  This  action,  except  as  to 
rents  and  profits,  was  for  the  possession  only.  It  can  deter- 
mine no  rights  but  those  of  present  po.sse.ssion.  (Mahoney  v. 
Van  Winkle,  21  Cal.,  583.) 

We  have  no  doubt,  upon  reason  and  authority,  that  one  tenant' 
in  common,  who  is  seized  per  mic  et  per  tout,  and  has  an  interest 
in  the  whole  which  entitles  him  to  the  enjoyment  of  the  entire  i  v-  v 

estate  as  against  every  one  except  his  co-tenants,  may  maintain    v^,,^^/.^ 
ejectment,  in  this  state,  agaiiLst  all  persons  but  his  co-tenants  U  r^^^^* 
aiTd  parties  claiming  under  them.*     (Hart  v.  Robertson,  21  Cal.,         ''^^"^ 
348;  Stark  v.  Barrett,  15  Id.,  371;  Touchard  v.  Crow,  20  Id., 
162;  Williams  v.  Sutton,  43  Id.,  71;  Smith  v.  Starkweather,  5 

•Mattis  V.  Boggs,  19  Neb.,  698;  McNear  v.  Williamson,  166  Mo.,  358, 
accord. 


260  PARTIES  TO   ACTIONS.  [Cu.VP.  II. 

Day,  210.)  As  to  the  mesne  profits,  he  can  recover,  pn)hal)ly, 
only  the  proportion  corresponding  to  liis  interest.  (Clark  v. 
Huber,  20  Cal.,  196.) 

Our  opinion  is,  that  the  court  below  erred  in  granting  a  non- 
suit, and  the  judgment  is  reversed. 


WHITNEY  V.   STARK. 
5  Cal,  514.      [1857.] 

This  is  an  action  of  trover,  to  recover  of  the  defendants,  Stark, 
as  sheriff,  and  ITaile,  as  execution  creditor,  the  value  of  two 
buggies,  which  the  plaintiff  alleged  had  been  wrongfully  sei/.ed 
and  converted,  etc. 

The  defendants  justified  the  taking  of  the  buggies,  under  an 
execution,  in  favor  of  defendant  Ilaile,  and  against  one  Edward 
H.  Cage,  alleging  that  they  were  the  projx^rty  of  Cage,  and  not 
of  the  plaintiff'. 

On  the  trial,  it  appeared  that  Cage  was  only  the  half  owner 
of  the  buggies,  the  other  part  belonging  to  one  Hazelrigg,  and 
that  he  had  only  sold  his  half-interest  to  plaintiff.  At  th6  close 
of  plaintiff's  testimony,  defendants  moved  for  a  non-suit,  on 
the  ground  of  non- joinder.  :Motion  denied,  and  the  defendants 
excepted. 

It  further  appeared  that  plaintiff,  after  his  purcha.se,  neglect- 
ed to  remove  the  buggies,  and  permitted  them  to  remain  in 
Cage's  stables,  until  they  were  attached  as  his  property,  in  the 
suit  of  Haile  v.  Cage.  Judgment  for  plaintiff.  Defendants 
moved  for  a  new  trial,  which  being  denied  they  appealed. 

Burnett,  J.,  delivered  the  opinion  of  the  court — Terry,  C.  J., 
concurring. 

This  was  an  action  of  trover.  The  property  was  levied  upon 
and  sold  by  the  defendant  Stark,  as  sheriff,  against  B.  H.  Cage. 
The  plaintiff  had  judgment  in  the  ceurt  below,  and  the  defend- 
ants appealed. 

The  first  error  assigned  by  the  learned  counsel  of  the  defend- 
ants is  that  the  court  erred  in  refusing  the  motion  of  defendants 
for  a  non-suit.  It  appeared  clearly  from  the  evidence  of  the 
plaintiff  that  he  was  only  a  part  owner  ot  the  property^— one 
Hazelrig  having  an  equal  interest  with  him.  All  the  parties  in 
interest  as  plaintiffs  should  be  joined.     (Pr.  Act,  sees.  12,  14;  T 


vj£C.  2.]  WHITNEY    V.    STARK.  261 

Chitty's  Plea,  65.)     But  there  are  ouly  two  ways  of  taking  ad-  ^^-A  <5o^  N 
vanta-e  of  the  non-joiuUer,  when  the  defect  does  noi  appear   ^  t^W  - 
upon  "the  face  of  the  complaint,  and  that  is  either  by  answer   .o^^co^  < 
or  apportionment  of  the  damages  at  the  trial.     (Tr.  Act,  sees.  V^  ,^,^^dUjt. 
40,  45;  1  Chitty's  Plea,  66;  9  Mass.,  74;  1  Wend.,  380.)     In  _i_^ 
equity  the  objection  should  be  taken  by  answer  or  demurrer.  ....^,^.>o»»- 
^o  Paige,  280.)     Where  a  part  owner  brings  an  action  m  form,   ^    ^^^ — ^ 
ex  delicto,  and  the  objection  is  not  made  by  plea  in  abatement, 
th^  other  part  ownerllll^'  afterward  ^^alone.      (1  Ch.  1  lea. 
66.)     In  this  vase,  the  objection  was  not  made  by  answer.    The 
uou-suit  was,  therefore,  properly  refused. 

CABLE  V    ST.  LOUIS  MARINE  RAILWAY  &  DOCK  COM- 

PANY. 

21  Mo.,  133.     [1855.] 

This  was  an  action  by  the  owners  of  the  steamboat  James 
IIe>ntt  to  recover  damages  for  the  sinking  of  said  boat  by  the 
negligence  of  the  defendant. 

At  the  trial  thm-  was  evidence  tending  to  show  that,  at  the  ^  y_^,,x^.  3 
time  of  the  I0S.S,  there  was  an  in.surance  upon  three-fourths  of  ^^^.^^^^ 
the    boat,    and    that    immediately    aftenvard    and    before    theU,.wv_  Z^ 
commencement   of   this  suit,   tlu-    interest    insured   was  by   the  ,^^  w  ^ 
plaintiffs  abandoned  to  and  accepted  by  the  underwriters. 

The  defendant  asked  thr  eourt  to  instruct  the  jury  that,  in 
respect  to  the  interest  abandoned,  the  right  of  action  was  in  the 
underwriters  alone,  and  that  they  should  have  b<?en  joined  as 
plaintiffs;  and  that,  in  any  event,  th.-  plaintiffs  could  not  recover 
more  than  one-fourth  of  th.  value  of  the  boat.  These  mstruc-  ^  .V^ 
tions  were  refused,  and  after  a  verdict  and  judgment  for  the  >^SUk^^  < 
plaintiffs  for  the  value  of  the  boat,  the  defendant  appealed  to   rsx^^y^ 

this  court.  ^^'c^  '^ 

Scott    Judge,  delivered  the  opinion  of  the  court. 

\11  other  questions  in  this  ciuse  have  bern  abandoned,  except 
that  in  relation  to  the  right  of  the  plaintitTs  to  maintain  this 
action  for  the  entire  value  of  the  boat. 

There  can  be  no  doubt  but  that  the  plaintitYs  would  have  been 
the  proper  parties  to  institute  thisaction  for  the  entire  sum 
'claJ^idTh^d  it  been  brought  undeFQuFTormer  system  of  pmL- 


262 


PARTIES  TO   ACTIONS.  [ChAP.  II. 


''■^ 


■w-s-^-T--  tice.  Though  there  had  been  an  abanduument  of  the  subject  in- 
yjo^^-v-  sured,  aud  that  abandoument  accepted  by  the  uuderwriters,  yet 
s.  ^U-K^  the  action  would  have  been  proi>erly  brought  for  the  full  value 
'^^-^-*-  V-^^  of  the  boat  in  their  names. 

^-  It  remains,  then,  to  be  seen  whether,  under  the  circumstances 

of  this  case,  the  action  is  not  properly  brought  in  the  name  of 
the  present  plaintiffs,  notwithstanding  the  present  practice  act. 
It  is  not  controverted,  but  is  admitted,  that  a  right  of  action  for 
a  portion  of  the  damages  arising  from  the  injury  to  the  subject 
insured,  is  in  the  plaintiffs,  and  that  they  have  the  right  to  re- 
cover the  value  of  one-fourth  part  of  the  boat,  which  was  lost 
through  the  alleged  negligence  of  the  defendant. 
.,/x;»v.  -  ^i*^       ^QYf^  is  there  anything  in  the  present  practice  act  which  ai- 
V^T"*t^        fects  or  in  any  way  impaii-s  the  rule  of  the  common  law  against 
'^^^'~^;     dividing  a  cause  of  action,_orjnaking  two  causes  of  action  out 
nfong_contract  or  injury  by  a  division  of  it.     The  endorsee  of 
a  bill  of  exchange  is  the  legal  owner  of  it,  and  regularly  a  suit 
upon  such  an  instrument  must  be  brought  in  his  own  name. 
'^^'^'^^-    But  if  the  holder  of  a  bill  assign  by  way  of  an  endorsement  one- 
^fl^.w.^.  ,^^^^  of  its  amount,  would  not  the  action,  notwithstanding  the 
'"'"^^^  ■         assignment,  still  have  to  be  brought  in  the  name  of  the  holder? 
By  our  law.  the  assignee  of  a  bond  is  the  legal  owner  of  it,  and 
suit  thereon  must  be  brought  in  his  name.     If  the  obligee  of  a 
bond  assign  one-half  of  the  sum  of  it,  could  the  assignee,  al- 
though the  legal  owner,  maintain  an  action  in  his  own  name  for 
his  portion  of  the  debt?     In  such  a  case,  would  not  the  suit 
necessarily  be  brought  in  the  name  of  the  obligee,  who  would  re- 
cover the  full  amount  due  on  the  instrument  ? 
--^"iu>4K -.^  A  cause  of  action  arising  ex  maleficio,  cannot  be  used  as  an 

sj-^jL^>i       illustration  of  this  principle,  because  neither  by  the  common 
tJS^i  law  nor  statute  was  it  assignable,  so  as  to  enable  an  assignee  to 

maintain  a  suit  for  the  damages  in  his  own  name. 

We  do  not  consider  that  the  provision  in  the  presence  practice 
act^  which  requires  actions  to  be  brought  mthe  name  of  the  real 
party  in  interest,  affects  this  principle  of  the  common  law. 
Under  th6  former  practice,  and  even  now,  the  legal  owner  of  an 
instrument  transferred  by  assignment  must  sue  in  his  own 
name,  yet  we  have  seen  that  the  legal  owner  of  a  part  of  a 
debt  secured  by  a  bond,  could  not  maintain  an  action  on  it.  It 
could  only  be  done  when  he  was  the  assignee  of  the  entire  debt. 
So  the  statute  requiring  the  real  party  in  interest  tosue^  should 
be  constriiea  m  reference  to^he  principle  ol  tne^  common  law 


Sec.  2.]      cable  v.  st.  louis  marine  b.  r.  &  dock  co.  263 

above  stated,  and  must  be  limited  to  thnst^cases  m  whlcU  the.  ^^a^-AWX  r 
real  party  in  interest  possesses  the  entire  t-ause  ofjieiJoiL  '^lie'  v^xx*.^^n^ 
5n^inal  owner  of  a  eause  of  action  cannot,  by  parting  with  a  J'^;;;T2^f^ 
portion  of  his  interest  in  it,  give  a  right  of  action  to  his  assignee,  "^^j^^^j^  ^^^ 
neither  by  the  common  law  nor  by  anything  contained  in  the  ^^^S^T^/J^ 
present  act  regulating  practice  in  the  courts  of  justice.  -^^^.Oc:;^  ^^ 

We  do  not  wish  to  be  understood  as  expressing  any  opinion  jl^  aK>  j^^ 
05  to  the  matter  in  which  the  suit  should  have  been  brought  had  J^^[^^^||";^^  c^ 
the  entire  boat  been  insmvd  by  the  owners,  and  they  indemnified  ^^^  ^^^^^  ^ 
by  their  policy.  K^^  «"^^1 

*  The  other  judges  concurring,  the  judgment  will  be  affirmed 

V" 


WHITE'S   BANK   OF   BUFFALO   v.  FAKTIIING. 

101  X.  Y.,  Sii.     [1386.] 

Andrews,  J. :  The  judgments  in  favor  of  the  German- Amer- 
ican Bank  were  recovered  November  13,  1883,  and  the  deficiency 
judgment  in  favor  of  the  banks  other  than  the  plaintiff  April  4, 
1884.  The  judgment  in  favor  of  the  plaintiff's  bank  was  re- 
covered February  4,  1884,  and  this  action  was  commenced  No- 
vember 14,  1884.  The  several  judgments  became  liens  on  lands 
fraudulently  conveyed  by  ^latilda  Farthing,  the  judgment 
debtor,  in  the  order  of  their  docketing,  and  they  could  have 
been  sold  on  executions  issued  on  the  judgments.  The  plaintiff, 
however,  elected  to  bring  its  action  to  remove  the  alleged  frau- 
dulent obstruction  created  by  the  conveyances.  If  it  succeeds 
in  establishing  th.'  fraud,  it  v.iil  be  entitled  to  a  judgment  set- 
ting aside  the  conveyances  simply,  in  which  case  it  can  proceed 
to  enforce  its  judgment  by  a  sale  of  the  land  on  execution,  un- 
embarrassed by  the  cloud  created;  or  the  court  may  proceed 
further  and  compel  the  fraudulent  grantees  to  convey  the  lands 
to  a  receiver,  to  be  sold  to  satisfy  the  plaintiff's  judgment. 

The  judgments  in  favor  of  the  other  banks  will  in  no  way 
be  affected"  whichever  form  the  judgment  in  this  action  may 
take.  If  it  simply  sets  aside  the  fraudulent  conveyances,  the 
land  will  remain  charged  with  the  liens  of  the  several  judgments 
in  the  order  of  their  docketing,  and  the  proceedings  to  enforce 
them  will  be  regulated  by  the  statute.    If  it  goes  further,  and 


264  PARTIES  TO   ACTIONS.  [ChaP.  II. 

appoints  a  i-eceiver,  and  directs  a  conveyance  to  him,  a  pur- 
chaser under  the  receiver's  sale  will  take  title  as  to  the  time  of 
the  debtor's  conveyance  to  the  receiver,  subject,  however,  to  the 
judgments  in  favor  of  the  banks  other  than  the  plaintiff.  Chau- 
tauqua Co.  Bank  v.  Risley,  19  N.  Y.,  369.  The  result  of  the 
plaintiff's  action  will  not,  therefore,  affect  the  lien  of  the  judg- 
ments in  favor  of  the  other  banks  whu  seek  to  intervene  in  this 
action. 

The  plaintiff  seeks,  also,  to  charge  the  Swan  street  lot  with 
the  lien  of  its  judgment,  on  the  ground  that  Geo.  Farthing 
caused  it  to  be  conveyed  to  Kelley  as  security  for  a  debt  owing 
by  him  to  Kelley,  which  has  been  since  paid,  and  that  the  judg- 
ment debtor,  Matilda  Farthing,  as  the  devisee  of  Geo.  Farthing, 
is  entitled  to  the  land.  The  other  banks  may  commence  similar 
actions  to  reach  the  Swan  street  lot,  and  the  plaintiff's  action, 
followed  by  judgment  in  accordance  with  the  relief  demanded, 
will  not  prejudice  any  rights  which  the  other  banks  may  have 
to  enforce  their  judgments  against  it.  According  to  the  rules 
established  in  this  state,  judgment  creditors  holding  distinct 
and  several  judgments  may  unite^  in  an  action  to  set  aside  a 
conveyance  by  the  common  debtor,  made  in  fraud  of  their  rights 
as  creditors.  Brinkerhoff  v.  Brown,  6  Johns.,  Ch.  139.  This 
is  a  convenient  rule,  but  it  is  not  a  rule  of  obligation,  but  one 
conferring  authority  only.  It  has  never  been  held  that  all 
judgment  creditors  so  situated  were  necessary  parties  to  such 
an  action.  We  think  section  452  of  the  code  does  not  require 
the_court,  on  application,  to  compel  a  plaintiff  to  bring  in  a 
judgment  creditor,  not  originally  made  a  party,  as  a  party  to  an 
action  instituted  by  him  to  set  aside  a  fraudulent  conveyance, 
although  its  power  to  direct  it  to  be  done  cannot  be  doubted. 
The  rights  of  the  creditor  not  made  a  party  will  not  be  preju- 
V^  diced  by  the  judgment  in  that  action.  A  judgment  creditor 
V  has  no  title  to  the  land  of  the  judgment  debtor,  but  a  lien  only, 
which  may,  by  subsequent  proceedings,  become  the  foundation  of 
title ;  nor  has  he  any  interest  in  the  subject  matter  of  the  action 
^  brought  by  another  judgment  creditor,  within  the  meaning  of 
that  section.  He  may  have  an  interest  which  will  be  subserved 
by  having  the  conveyance  set  aside.  But  he  will  not  be  con- 
eluded  by  a  denial  of  that  relief  in  the  action  of  the  other  credit- 
or, and,  whatever  the  result  of  that  action  may  be,  his  rights 
and  remedies  remain  as  before. 

The  cases  of  People  v.  Albany  &  V.  R.  R.  Co.,  77  N.  Y.,  232 


Sec.  2.]  white's  bank  v.  fartuing.  26o 

and  Osterhoudt  v.  Supervisors,  etc,  98  N.  Y,  239,  cited  by  the 
appellant,  are  not  analogous.  No  effectual  judgments  could  be 
rendered  in  those  actions  unthout  directly  cutting  off  or  impair- 
ing rights  of  persons  not  parties,  and  it  was  held,  in  accordance 
with  the  settled  rule  in  equity,  that  they  should  be  brought  in 
so  that  there  would  be  a  complete  determination  of  the  contro- 
versy. 

We  think  the  order  appealed  from  was  discretionary,  and  that 
the  appeal  should,  therefore,  be  dismissed. 

All  concur.  ^^^^     loSUr^^"^' 

ELDREDGE  v.  PUTNAM. 

46  Wis.,  205.     [1879.] 

Action  by  Eldredge  against  Putnam  to  set  aside  an  account 

and  to  have  a  new  one  taken,  and  for  judgment  for  the  amount  ^ 
found  duo  by  the  defendant  on  such  accounting.     Defendant  ^^^ 
interposed  a  demurrer  for  defect  of  parties  and  for  failure  to^_^^^^^^^^ 
state  facts  constituting  a  cause  of  action.     From  an  order  sus-  ^  ,^^^^^_, 
taiuing  the  d.-murrer,  the  plaintiff  appeals.     Affirmed.  .y^Z^i^^ 

Cole,  J. :     The  learned  counsel  for  the  plaintiff  insists  that  i^ij 

it  was  error  on  the  part  of  the  court  below  to  sustain  the  demur-  Vv  os^-^^As 
rer  on  the  ground  that  James  Patrick  was  a  necessary  party  -— -Si*.- 
plaintiff.    At  the  same  time  the  counsel  frankly  admits  the  gen-  .  <i^^^^^  ^ 
eral  rule  to  be  that,  in  actions  to  obtain  an  accounting  and  set-  Vv  ^^^ 
tlemeni_of  a  trust  fund,  all  persons  in^rested  in  such  account-  I  "^"^ 
i^g;  and  entitled  to  shares  in  the  distribution,  are  n<^cessary  )  ^>JJ^itA/- 
2artii:aj  but  he  claims  that  the  facts  stated  in  the  complaint 
bring  the  case  within  one  of  the  well-recognized  exceptions  to 
that^mle.     An  exceptiogj  is,  that,  where  each  beneficiary  is  en--,    -i^.s^r^ 
titled  to  an  aliquot  part,  such  as  a  quarter  or  a  half  of  an  jgcer-  (  v^A^-^ysj. 
tainecTand" definite  trust  fund,  each  may  sue  for  his  portion,  j^.c^.-^.' 
as  was  done  in  Hubbard  v.  Burrell,  41  Wis.,  365,  ^Wthouljnak-7jju.o.^^ 
ing  the  other  beneficiaries  parties.     Such,  he  says,  is  the  case  at  c^jiv,;^ 
bij;     But   Ilub^afd   V.    Burrelfis   quite   distinguishable   from    \jZf^^ 
this  case.    There  no  accounting  of  the  trust  fund  was  necessary, 
and  no  such  relief  was  demanded  in  the  complaint.     The  de- 
cision proceeds  on  the  ground  that  the  trustee  held  a  definite 
and  ascertained  sum  for  the  plaintiff,  and  that  James  Hubbard 
had  no  interest  in  the  subject-matter  of  the  suit.    It  was,  there- 


266  PARTIES   TO   ACTIONS.  [ClIAI'.  II. 

fore,  said  in  the  opinion  that  there  was  no  reason  why  the  plain- 
tiff could  not  have  a  separate  action  to  recover  his  share  held 
by  the  trustee.     According  to  the  complaint,  the  plaintiff's  as- 
signor, Erwin  Evelith,  and  James  Patrick  were  to  receive,  as 
payment  for  their  services  in  examining  and  locating  the  lands 
described  for  the  defendant  and  William  S.  Patrick,  one-eiglith 
of  the  proceeds  of  the  sales  of  such  lands,  less  one-eighth  of  all 
taxes  and  interest  paid  on  the  same  while  held  by  the  defendant 
and  William  S.  Patrick.     It  is  stated  that  by  an  agreement  be- 
tween Evelith  and  James  Patrick  for  the  lauds  which  were  ex- 
amined and  selected  by  them  jointly,  each  was  to  receive  an 
undivided  one-sixteenth  of  such  sales;   while   for  those  which 
each  separately  examined  and  selected,  the  party  so  selecting 
was  to  receive  the  entire  one-eighth.      The  number  of  acres 
selected   by  each  separately,  and  by   Evelith   and  Patrick  to- 
gether, is  stated.    It  further  appears  that  all  the  lands  were  sold 
by  William  S.  Patrick,  in  whom  the  legal  title  was  vested  for 
that  purpose,  for  the  joint  benefit  and  profit  of  himself  and  the 
defendant;  and  the  price  received  per  acre  on  such  sales  is  al- 
leged.    It  does  not  appear,  however,  that  there  was  ever  any 
accounting   and   settlement    of    these    various   transactions   be- 
tween the  defendant  and  William  S.  Patrick,  though  it  is  stated 
that  the  latter  died  in  Pennsylvania  in  January,  1877,  leaving 
the  defendant  the  sole  surviving  promisor  and  trustee  under  the 
written  acknowledgment   of  trust  set   forth   in   the   complaint. 
The  plaintiff'  then  alleges,   upon  information  and  belief,  that 
during  the  year  1877,  and  before  the  commencement  of  this 
suit,  the  defendant  herein  fully  accounted   to  and  with   and 
fully  paid  and  satisfied  the  said  James  Patrick  for  all  money, 
claims,  and  demands  due,  owing,  and  belonging  separately  and 
individually  to  him,  the  said  James,  by  reason  of  the  matters 
and  things  set  forth.     It  is  further  averred  that,  in  the  autumn 
of  1873,  William  S.  Patrick  rendered  to  the  plaintiff  a  false, 
imperfect,  and  partial  account  of  the  sales  made  by  him,  from 
which  it  appeared  that  the  separate  share  of  the  plaintiff,  com- 
puted according  to  the  price  per  acre  given,  was  about  the  sum 
of  $1,300,  only  about  $85  of  which  has  ever  been  paid.     It  is 
then  stated  that  the  plaintiff  did  not  learn  until  after  the  death 
of  William  S.  Patrick  that  this  accounting  was  false  and  frau- 
dulent ;  and  it  is  averred  that  he  has  not  since  assented  to  nor 
acquiesced  in  such  accounting.    It  is  alleged  that  at  divers  times 
while  the  defendant  and  W.  S.  Patrick  were  the  owners  of  the 


gg(.   2.1  ELDREDGE  V.  PUTNAM.  267 

lands  certain  taxes  were  paid  by  them,  but  at  what  times  or  to 
what 'amounts,  the  plaintiff  is  unable  to  state,  except  that  the 
sum  of  $U.62  was  paid  by  them  for  the  taxes  of  18/2.    Ihe  re- 
lief asked  is  that  the  partial,  imperfect,  and  fraudulent  account- 
in-  be  set  aside  and  held  of  no  effect;  and  that  an  accounting 
may  be  had  between  the  plaintiff  and  defendant  of  all  the  sales 
and  adventures  in  said  lands,  and  of  and  concerning  the  profits, 
proceeds   and  receipts  of  the  same,  and  the  whole  thereof;  and 
that   after  deducting  such  sums,  as  should  of  right  be  deducted 
in  tiie  premises,  the  plaintiff  may  have  a  judgment  against  the 
defendant  for  such  sum  as  shall,  on  such  accounting,  be  found 
due  him  for  his  individual  and  separate  share  of  the  purchase 
money  received  by  ^Vllllam  S.  Patrick  and  the  defendant,  or 

either  of  them.  ,    .  ,       _<. 

We  have  thus  given  at  some  length  the  more  material  parts 
of  the  complaint,  in  order  to  show  the  purpose  and  scope  ot  the 
action  It  will  be  seen  that  the_i)ku:iJ^i2Llhr  suit  is  tn  set 
aside  the  alleged  fraudulenl_settlement  or  account  imMlHld^J^^Il^ 

The'i^hdi^^nFbTw^ 

rountin^I^JThr^^^h^r^^^^  ^'H  ^' 

Uio^T^cted  by  Evelith  and  James  Patrick  together,  as  those 

selected  bv  each  separately.     All  these  various  matters  have  to 

be  examined,  and  the  amounts  of  the  taxes  paid  by  the  owners, 

with  the  interest  thereon,  have  to  be  ascertained  and  adjusted. 

How  it  can  be  successfully  maintained  that  James  I  atrick  is 

not  interested  in  these  matters,  and  is  not  a  necessary  party  to 

the  account  to  be  taken,  it  is  difficult  to  understand.     Ihe  de- 

tVndant  mav  well  insist  that,  if  all  these  transactions  are  to  be 

inciuired  into  and  overhauled,  James  Patrick  should  be  before 

th    court,  so  that  the  accounting  should  be  final    At  all  even  s 

it  would  seem  clear  that  tjiejac^ts  do  not  show  thgLi^^"^  /  '^ 

isentitledl^a^emillJi^^^ 

;;n;nilriilthr^^iith^^ 

ar^dTh;rclas.s  of  cases.    O^HhT^^rary,  thej^resen^^  ^_3^ 

T>ntriok  would  seem  to  h.   abs>.lut.4y   necessary  to  tajangjhe  ^^^^^^ 

^^-^^-^hr^i;^^S^Ur^^    the  legal  representative  of  A\ .  S.    -^Vt^ 
Patrick  a  party,  though  there  would  seem  very  cogent  reason 
for  doin-  so.    W.  S.  Patrick  was  the  party  who  made  the  al- 
eled  fraudulent  settlement  with  the  plaintiff,  and  it  does  no 
apVar  that  the  defendant  was  privy  to  or  connected  with  chat 
fraud   except  that  it  may  be  presumed  he  was  benehted  b>   it, 


268  PARTIES   TO   ACTIONS.  [CULVP.  II. 

as  he  and  William  jointly  shared  in  the  profits  of  the  specula- 
tion. However,  we  express  no  definite  opinion  on  the  question 
whether  the  legal  representative  of  \V. .  S.  Patrick  should  be 
before  the  court,  since  no  point  was  made  upon  it  in  the  argu- 
ment. But  as  to  the  necessity  of  making  James  Patrick  a  party, 
in  view  of  the  relief  sought,  we  are  clear  that  he  should  be 
brought  in.  But  it  was  further  said  that  the  complaint  shows 
that  James  Patrick's  interest  in  the  fund  has  wholly  ceased,  and 
therefore  that  he  need  not  be  made  a  party.  We  have  referred 
to  the  allegation  that  the  defendant  had  fully  accounted  with 
and  fully  paid  James  Patrick  for  all  moneys,  claims,  or  de- 
mands due  and  owing  to  him  separately  and  individually.  A 
question  was  made  whether  this  averment  was  intended  to  em- 
brace matters  in  which  James  Patrick  was  jointly  interested 
with  the  plaintiff,  or  whether  it  did  not  exclusively  refer  to 
such  lands  as  he  alone  examined  and  selected,  and  for  which 
he  was  to  receive  the  entire  one-eighth  of  the  proceeds.  But, 
giving  to  the  allegation  its  widest  steope,  we  think  that  it  does 
not  dispense  with  the  necessity  of  making  James  a  party  to  the 
general  accounting.  We  have  already  sufficiently  stated  our 
reasons  for  that  view,  and  need  not  repeat  them.  The  counsel 
for  the  plaintiff  referred  us  to  a  number  of  cases  which  decide 
that  when  a  party  answerable  in  contract  to  two  jointly,  set- 
tles with  one  of  them,  so  that  one  of  them  has  no  longer  any 
interest  in  the  matter  in  dispute,  it  amounts  to  a  severance  of 
the  cause  of  action,  and  the  debtor  is  liable  in  an  action  at  law 
to  the  other  alone.  This  doctrine  was  recognized  or  acted  upon 
in  Strohn  v.  Insurance  Co.,  33  Wis.,  648 ;  Carrington  v.  Crocker, 
37  N.  Y.,  336,  and  Boston  &  M.  R.  R.  Co.  v.  Portland,  etc.,  R.  R. 
Co.,  119  Mass.,  498.  But  the  doctrine  of  these  cases  does  not 
^_^  _V  apply  here,  where  a  full  accounting  is  sought  in  equity.  There 
^'•'the  invariable   rule  is  that  all   interested  in  the  account  are 


Xii/^-»- 


necessary"  parties,  either  plaintiffs  Or  defendants.  It  follows 
iProm  these  views  that  the  order  of  the  circuit  court  must  be  af- 
firmed. 


V-    A4^ 


Sec.  2.]  lilly  v.  tobein.  269 

LILLY  V.  TOBEIN. 
103  Mo.,  477.      [1890.] 

Black,  J. :     *     *     *  ,  ^     j     ^    ^ 

To  the  original  petition  filed  in  this  cause  the  defendants  de- 
murred, on  the  ground,  among  others,  that  the  unincorporated  rj  ^^^J^^^  . 
church  society  had  no  power  or  legal  capacity  to  sue.    The  de-  ,^^^^^^3::^^ 
murrer  was  sustained,  and  thereupon  an  amended  petition  was  _,,,,_x,,c^ 
filed,  adding  as  plaintiffs,  John  J.  Lilly,  Michael  Howell,  Patrick  ^  ^.^x.^ 
O'Malley    and  Thomas  Clark,  members  of,  and  alleged  to  be  cV^^/v*Vv- 
trustees  of,  the  church.     These  persons  sue  for  themselves  and 
all   other  members  of  the  association.     The   amended   petition 
also  names  one  hundred  or  more  persons,  members  of  the  church, 
as  additional  plaintiffs.     To  this  amended  petition  the  defend- 
ant demurred,  and  this  demurrer  was  sustained  as  to  the  unin- 
corporated association,  but  ,)verruk-d^a.s^to  ^tlie  new  plaintiffs 
brought  in  by  the  amended  petition. 

3  The  statute  allows  "any  person  interested  in  the  probate 
of  the  will"  to  prosecute  a  suit  to  contest  the  same,  or  to  have 
one  proved  which  has  been  rejected  by  the  probate  court.  As^ 
Kuming  that  the  church  is  capable_oL!!lliHHT  ^he  fact  that  it  is  by 
th.-  will  made  ajlevisee_gives_to  it  an  interest  which  entitjesjt 

uTi^F^^^c^tTTh^^ 

t^st  can  be  represented  by_JluLPre-^'-"t  plaintiffs, 

^^Tappeared  in  the  former  suit,  as  it  does  now,  that,  atjhe,^^— ^ 

^^>o^wf  t>,.  t^tator.  the  Catholic  Church,  at  Lexington  jas.-—^ 

simply    an    uningorporatcd__n:ligious    a.s.sociation,      Uiereatter^  ^^ll^ 

the  members  of  the  church  organ ized^isjij3ori)orat^  that  ,^_^_^^^^^ 

suit   was   instituted   by   the  incorporated   association.     It   was  .^  ^^^^  ^ 

held  that  the  incorporation  of  the  plaintiff  did  not  vest  in  it  the_^^^^^^^    ^ 

property  rights  of  the  church  society,  and  for  that  reason  the  ,^,^_;^;,^^_^ 

plaintiff  could  not  maintain  the  suit.    Trustees  of  a  charity  are  ..y:,^^,^:^ 

often  incorporated  for  the  purpose  of  executing  the  tru.st,  and,  ^^-^ 

since  the  church  society  was  doubtless  incorporated  to  enable  c^X>- -^ 

It  the  better  to  protect  the  devise  in  question,  the  correctness  >--Vj^-^ 

of  the  conclusion  reached  in  that  case,  as  to  the  rights  of  the  ^^p^^--^ 

corporation  to  prosecute  the  suit,  may  well  be  doubted^    It  ^vas,^^^;-^ 

however,  held  in  that  case,  and  we  think  correctly  held,  that  ^^J^^ 

the  church  society  did  not  lose  its  existence,  or  become  wholly  ^,,:;;^Xw^ 

merged  in  the  corporation.  -^ / 

The  constitution  provides  that  "No  religious  corporation  can  r.<^ 


270  PARTIES  TO   ACTIONS.  [ClIAP.  II. 

be  established  in  this  state,  except  such  as  may  be  created  under 
a  general  law  for  the  purposes  only  of  holding  the  title  to  such 
real  estate  as  may  be  prescribed  by  law  for  church  edifices,  par- 
sonages, and  cemeteries."  Art.  2,  sec.  8.  As  a  church  can 
only  be  incorporated  for  the  specified  purposes,  it  was  held  that 
the  church  organization  for  religious  purposes  must  continue 
after  incorporation.  In  view  of  an  intimation  then  made,  this 
suit  was  commenced  in  the  name  of  the  unincorporated  society, 
but  a  demurrer  to  the  petition  was  sustained  because  of  the 
want  of  capacity  in  the  plaintiff  to  sue.  It  is  now  insisted  that 
Lilly,  O'Malley,  Howell  and  Clark,  who  were  made  parties  plain- 
tiff by  the  amended  petition  and  who  are  members  of  the  church 
and  sue  for  themselves  and  all  other  members  of  the  association 
cannot  prosecute  this  suit. 
j^^j^  f  It  is  a  well-established  rule  in  equity  plpnrlinfr  that  one  or 
more  of  the  members  of  a  voluntary  association,  whether  organ- 
ized for  public  or  for  private  purposes,  may  sue  for  and  in  be- 
half of  all  the^iembsra.  Story  Eg.  Plead.  (9  Ed.),  sees.  94  and 
114a.  The  right  of  a  few  persons  to  sue  for  themselves  and  all 
other  persons  similarly  situated  has  been  recognized  by  this 
court  on  several  occasions:  52  Mo.,  81;  67  Mo.,  203.  It  is  true 
that  this  is  an  equity  rule,  and  we  have  no  statute  extending  it 
to  actions  at  law,  as  is  the  case  in  some  of  the  states.  It  has 
also  been  said  in  several  cases  that  a  suit  to  contest  a  wall,  or  to 
establish  one  which  has  been  rejected  by  the  probate  court,  is  an 
action  at  law.  Lyne  v.  Marcus,  1  Mo.,  410;  Swain  v.  Gilbert, 
3  Mo.,  347;  Young  v.  Ridenbaugh,  67  Mo.,  574;  Mcllraith  v. 
Hollander,  73  Mo.,  112.  Such  a  suit  is  doubtless  one  at  law  in 
the  sense  that  it  is  a  statutorj^  proceeding.  But  this  court  said 
in  the  case  of  Eddie  v.  Parke's  Ex'r,  31  Mo.,  513,  which  was  a 
suit  to  contest  a  will:  "Although  this  is  technically  a  proceed- 
ing at  law,  yet  in  many  respects  it  partakes  of  the  nature  of  a 
.  proceeding  in  chancery,  and  the  rules  recognized  in  courts  of 
equity,  with  respect  to  the  persons  necessary  to  be  made  parties 
to  a  bill,  we  thinl?,  is  to  a  great  extent  applicable  to  a  case  of  this 
v^K  J — ^  kind."  Looking  to  the  parties  who  should  be  brought  before 
.3l^  '*'*«*^  ^^<^  court,  the  method  of  making  up  and  submitting  the  issue 
•tkjLSl  of  will  or  no  will,  and  the  character  and  form  of  the  judgment, 

=>•  we  can  but  conclude  that  a  suit  to  contest  or  establish  a  will 


has  many  of  the  features  of  a  suit  in  chancery ;  and  the  equity 
rule  allowing  one  or  more  members  of  a  voluntary  association-- 
to  sue  for  all  should  be  applied  to  cases  like  the  one  in  hand." 


271 

Sec.  2. J  lilly  v.  tobein.  ^'^ 

It  results  from  what  has  been  said  that  it  is  a  matter  of  no 
consequence  that  some  of  the  other  named  plaintiffs  have  died 
or  ceased  to  be  members  of  the  church,  or  are  minors  or  marrwd 
women.   They  may  be  disregarded  as  unnecessary  parties.  *  *  * 

Judgment  affirmed. 


Section  3.     Joinder  of  Defendant*. 

Code  Provisions:  ''Any  per.son  may  be  made  a  defendant 
who  has  or  claims  an  interest  in  the  controvei-sy  adverse  to  the 
plaintiff  or  who  is  a  necessar>'  party  defendant,  for  the  com- 
plete  determination  or  settlement  of  a  question  nivolved  therein, 
except  as  otherwise  expressly  prescribed  in  tins  act.  In  any 
action  brought,  affecting  real  estate  upon  which  the  people  ot 
th.'  state  of  New  York  have  or  claim  to  have  hen,  under  the 
transfer  tax  act,  the  said  people  of  the  state  of  New  York  may 
be  made  a  party  defendant,  in  the  same  manner  as  a  private 
person.  In  such  a  case  the  summon.s  must  be  served  on  the  at- 
torney general,  who  may  appear  in  ^-half  of  the  people.  -N. 
Y.  Code  Civ.  Proc.  Sec.  ii7. 
See,  also  Sec.  448,  ante,  p.  212. 

Two  or  more  persons,  severally  liable  upon  the  same  written 
instrument,  including  the  partias  to  a  bill  of  exchange  or  a 
promissory  note,  whether  the  action  is  brought  upon  the  instru- 
ment or  by  a  party  thereto  to  recover  against  other  parties 
liable  over  to  him;  may,  all  or  any  of  them,  be  included  as  de- 
fendants in  the  same  action,  at  the  option  of  the  plaintift.— A . 
Y.  Code  Civ.  Proc.  Sec.  454. 

"Any  person  may  be  a  defendant  who  has  or  claims  an  in- 
terest in  the  controversy  adverse  to  the  plaintitf,  or  who  is  a 
necessary  party  to  a  complete  determination  or  settlement  of 
the  question  involved  therein.  And  in  actions  to  recover  posses- 
sion of  real  estate,  the  landlord  and  tenant  thereof  may  be 
joined  as  defendants,  and  any  person  claiming  title  or  a  right 
of  possession  to  real  estate  may  be  made  a  party  plaintiff  or  de- 
fendant, as  the  case  may  require,  to  any  such  action."— Mo.  R. 
S.  1S99,  Sec.  543. 

See,  also  Sec.  544,  ante,  p.  212. 

"Everj^  person  who  shall  have  a  cause  of  action  against  sev- 


272 


PARTIES   TO    ACTIONS. 


[Chap.  U. 


eral  persons,  includin;,'  parties  to  bills  of  exehan^'e  and  i)rorais- 
sory  notes,  and  who  shall  be  entitled  by  law  to  one  satisfaction 
therefor,  may  bring  suit  thereon  jointly  against  all  or  as  many 
of  the  persons  liable  as  he  may  think  proper;  and  he  may,  at 
his  option,  join  any  executor  or  administrator  or  other  person 
liable  in  a  representative  character,  with  others  originally 
liable."— Mo.  B.  S.  1899,  Sec.  545. 

"In  cases  of  joint  obligations  and  joint  assumptions  of  co- 
partners or  others,  suits  may  be  brought  and  prosecuted  against 
any  one  or  more  of  those  who  are  so  liable." — Mo.  B.  S.  1899, 
Sec.  892. 

(a)  Parties  ^Yho  May  be  Joined. 
PHILLIPS  V.  FLYNN. 

71  Mo.  42i.     [1880.] 

This  was  a  suit  for  rent  against  defendant  Blackburn.  Flynn 
was  joined  as  a  co-defendant.  The  petition  averred  that  he  had 
purchased  of  Blackburn  the  crop  raised  on  the  demised  prem- 
ises; that  the  purchase  was  made  with  full  knowledge  that  it 
had  been  so  raised,  and  that  plaintiff's  rent  was  not  paid,  and 
that  plaintiff  was,  therefore,  entitled  to  a  landlord's  lien  upon 
the  crop.  It  further  averred  that  Flynn  had  sold  and  shipped 
the  crop,  so  that  the  lien  could  not  be  specifically  enforced. 
There  was  a  prayer  for  a  general  judgment  against  Blackburn, 
and  a  prayer  that  Flynn  be  required  to  pay  plaintiff  out  of  the 
proceeds  of  the  sale  the  amount  of  such  judgment.  To  this  pe- 
tition Flynn  filed  a  demurrer,  which  having  been  overruled,  he 
refused  to  plead  further,  and  after  a  trial  and  verdict  against 
Blackburn,  a  judgment  was  entered  against  both,  from  which 
Flynn  appealed. 

Sherwood,  C.  J.  The  objections  of  the  demurrant  Flynn  to 
the  petition,  were  well  taken  for  these  reasons:  1st,  The  peti- 
tion united  in  the  same  count  two  distinct  causes  of  action,  one 
arising  ex  contractu,  the  other  ex  delicto.  2d,  Two  distinct 
causes  of  action  not  belonging  to  the  same  class,  were  united  in 
the  petition.  3d,  There  was  an  improper  joinder  of  parties  de- 
fendant,  Blackburn,  who  was  declared  against  on  a  breach  of 
contract,  and  Flynn  for  a  tort.  It  is  unnecessary  to  notice  the 
other  m-ors  assigned.  Judgment  reversed  and  cause  remanded. 
All  concur.  r. 


Sec.  3.]  Trowbridge  v.  forepaugh.  273 

TROWBRIDGE  v.  FOREPAUGH. 
11  Minn.  133.      [1869.] 

Appeal  from  an  order  of  the  court  of  common  pleas,  Ram- 
sey county,  sustaiiiin.i,'  a  demurrer  to  the  complaint. 

The  action  is  against  Joseph  L.  Forepaugh,  and  Monroe  and,  ^■^-*^«'^  •  P^ 
Romaine  Shiere,  and  the  city  of  St.  Paul,  for  an  injury  caused  Vy*^  ^^--'y'-v- 
by  plaintiff  falling  into  a  hole  on  Third  Street,  in  St.  Paul,  \jv* — Hj-*)-^ 
across  the  front  of  defendant  Forepaugh 's  lot.     The  complaint  vs_  X^^-c*^  >' 
alleges  the  excavation  of  the  hole  by  the  defendants  Forepaugh  A-*-^-*----*-*^ 
and  the  Shieres,  and  that  they  willfully  and  negligently  left  it  A^->V  ''^^  ^ 
open  without  protection  or  notice,  and  that  plaintiff  fell  into  it  ^i"^^^'^*?^^^ 
and  was  injured.     It  alleges  the  duty  of  the  city  to  keep  the^"*-^ 
streets  and  sidewalks  in  repair,  free  from  obstructions,  and  in      ' 
suitable  condition  for  use  and  travel,  notice  to  it,  and  that  it 
suffered  the  hole  to  remain  without  protection  or  notice.     The 
defendants,  other  than  the  city,   demurred    for    an    improper 
joinder  of  causes  of  action. 

Wilson,  C.  J.  Tlie  liability  of  the  city  depends  on  a  state  of  ^^Vv-w^-,;,^/^^,-^ 
facts  not  affecting  its  co-defendants;  and  the  converse.  Neither  .^^(,C>..^*o»/v.  r\ 
is  in  fact  nor  in  law  chargeable  with,  or  liable  on  account  of,  the  ^.„,>o>-^  <>vi 
matter  set  up  as  a  cause  of  action  against  the  other.  /They  did 
not  juintly  conduce  to  the  injury  by  any  acts  either  of  omission 
or  commission/ 

Under  such  circumstances  we  find  no  ease  holding  that  a  joint 
action  is  maintainable ;  and  we  are  of  the  opinion  that  it  is  un- 
authorized by  any  statute  or  legal  principle.  Our  statute,  which 
is  merely  declaratory  of  the  common  law,  forbids  the  joinder  of 
causes  of  action,  which  do  not  affect  all  the  parties  to  the  ac- 
tion. Gen.  Sts.  c.  66,  §98.  For  such  improper  joinder  of 
causes  of  action  any  defendant  may  demur.  There  is  nothing 
in  the  statute,  and  we  discover  no  reason,  requiring  all  the  de- 
fendants  to  join  in  such  a  demurrer. 

Order  affirmed.  n  ^    t. 


18 


274  PARTIES  TO  actions!  [Chap.  II. 

SIMMONS  V.  EVERSON. 

124  N.  Y.  319.     [1891.] 

Appeal  from  a  judgment  of  the  general  term  of  the  fourth 
♦*^*'-^*-<^      judicial  department,  affirming  a  judgment  entered  on  the  de- 
^  *''^"*'"**^  cision  of  the  circuit  court. 

*:  ^  tV,^.  rpjjg  iv'i^l  court  found  that  for  many  years  prior  to  October 

's/Z^-Z^Ij^  ^^'  1887,  the  appellants  owned  in  severalty,  three  lots,  each  being 
^^3aIIIji"  -2  feet  wide,  and  bounded  on  the  east  by  the  center  line  of  South 
'Sj^  W^,  Salina  street  in  the  city  of  Syracuse.  The  south  lot  was  owned 
ti  \<^\s^  by  the  defendant  Lynch,  the  middle  one  by  the  defendant 
vv^.sA^oX^-  Pierce,  and  the  north  one  by  the  defendant  Everson.  On  these 
lots  stood  three  brick  stores,  separated  from  each  other  by  brick 
partition  walls  extending  from  the  foundations  to  the  roofs.  A 
continuous  brick  wall  of  uniform  height  (about  sixty  feet)  and 
thickness  stood  adjacent  to  the  west  line  of  the  street,  and 
formed  the  front  of  the  buildings.  The  partition  walls  and  the 
front  wall  were  interlocked,  or  built  together.  On  the  date  men- 
tioned the  three  stores  were  sub.stantially  dstroyed  by  fire, 
nothing  being  left  standing  except  the  front  wall,  a  part  of  the 
partition  walls,  and  a  small  part  of  the  woodwork  in  the  front 
of  Everson 's  building.  Shortly  after  this  event  the  front  wall 
began  to  lean  towards  the  street,  and  continued  to  incline  more 
and  more  in  that  direction  until  Nov.  17,  1887,  when  it  gave  way 
near  the  point  where  it  was  united  with  the  partition  wall  be- 
tween the  buildings  of  Lynch  and  Pierce,  carrying  down  the 
entire  front  and  part  of  both  partition  walls.  i\Iaterial  from 
the  part  of  the  front  wall,  standing  on  the  lots  of  Pierce  and 
Everson,  and  from  their  partition  wall  fell  on  and  killed  the 
plaintiff's  intestate,  who  was  lawfully  on  the  sidewalk  near  the 
boundary  between  their  properties.  No  part  of  the  walls  on 
Lynch 's  lot  fell  on  decedent.  It  was  found  that  immediately 
after  the  fire  the  front  and  part  of  the  partition  walls  became 

•  weak,  unsafe,  dangerous,  and  liable  to  fall  into  the  street,  and 
that  each  of  the  defendants  wa.s  careless  and  negligent  in  not  re- 

*  moving  or  supporting  the  walls  on  his  own  lot,  and  that  the  sev- 
eral neglects  of  the  defendants  united  and  directly  caused  the 
walls  to  fall.  It  was  further  found  that  these  walls  were  so  un- 
safe that  they  were  a  public  nuisance,  and  also  that  the  de- 
cedent did  not  negligently  contribute  to  the  accident  or  to  his 
own  death.     The  damages  were  assessed  at  $5,000. 


gEC.  3.1  SIMMONS  V.  EVERSON.  2<0 

FOLLETT,  C.  J.  (after  stating  the  facts  as  above)  :    It  is  urged 
in  behalf  of  the  defendants  that  at  most  this  is  but  a  case  of 
several  independent  acts^  of  negligence  committed  by  each,  the 
joint  effect  of  which  caused  the  accident,  and  for  which  they  are 
not  jointly  liable  within  the  rule  laid  down  in  Shipman  v.  Pal- 
mer   77  X   Y   51.     The  case  at  bar  does  not  belong  to  the  class  -^W^   ^^ 
of  actions  arising  out  of  acts  or  omissions  which  are  simply  neg-  ;;^^."  " 
ligent  and,  while  the  defendants  did  not  intend  by  their  several    \-*^-^^ 
acts  to  commit  the  injury,  their  conduct  created  public  nuisance, 
which  is  an  indictable  misdemeanor  under  the  statutes  ot  this 
state   (Pen.  Code,  §§385,  387;  Vincent  v.  Cook    4  Ilun    318;) 
and  at  common  law  (Reg.  v.  Watts,  1  Salk.  357;  Reg.  v^ Watson 
2  Ld    Raym.  856;  1  Russ.  Crimes,  5th  edition  423;  2  W  hart. 
Crim.'  Law,  §1410;  Bigelow,  Torts,  237;   Pol.   Torts    2nd  ed. 
345;   Steph.   Dig.   Crim.   Law,  art.   176;   Indian  P.   C.   §268).^^^^ 
TWgm^svdi^Jn^        -^^-^r.}  ao.t.s  or  omissionsju^nitam-a^:  .^..^.A^ -- 

=^^P=^^^7gTri3tri^^^and  proba-b]^^^^  ^J^ 

gnf  Y.  138;  Timlin  v.  Oil  Co.,  7  N.  Y.  Supp.  158;  Klauder^ v.    ^--^—  • 
McGrath,  35  Pa.  St.  128;  1  Shear  &  R.  Neg.   (4th  ed.)   §12.; 
Pol    Torts,   (2nd  ed.)  356.     ThUalLoLlheseJmn:.storx_b^ 
walls   into  the  street  was  the  direct  andJmmediate^onseHU^ 

-fTh7ii^^iira^:^raLl^ 

itaSdm^-^^Mf^wnlotsl^^ 

bi^u^^iiblZt^Inclin^^^ 

i^r7r^rin;^^^^fi^^Th^^  any  part  of  the  front 

wall  fdl,  a  large  part  of  it  must,  and  that  it  would  go  into  the 
street.  The  judgment  should  be  affirmed,  with  costs.  All  con- 
cur,  except  Vann,  J.,  not  voting.  0^^^      n^^a^ws... 

COOPER  v.  BLAIR. 

14  Ore.  255.     [1886.] 

Thayer  J.  The  appellant  commenced  an  action  in  the  court 
below  against  the  respondents  to  recover  damages-for  an  alleged 
c  nversron  of  a  quantity  of  wheat  -^ich  the  appellant  had 
stored  with  the  respondent  Blair  at  Corvallis  Benton  County 
Oregon  Blair  had  two  warehouses,  in  which  he  received  wheat 
for  storage,  and  dealt  in  buying  and  selling  wheat.    He  received 


276  PARTIES   TO    ACTIONS.  [ClIAP.  TI. 

from  appellant  833  bushels,  Oct.  25,  1882,  at  his  warehouse,  on 
First  Street,  Corvallis;  416  7/60  bushels,  at  same  warehouse, 
Sept.  19,  1885;  and  at  or  about  that  time  received  from  him 
716  46/60  bushels  at  same  warehouse.  A  part  of  the  wheat  so 
stored  the  appellant  subsequently  sold  to  Blair.  lie  alleges  that 
he  had  1,365  bushels  and  some  pounds  of  wheat  after  the  sale 
to  Blair,  which  he  charged  the  respondent  with  having  con- 
verted. The  respondents,  the  Salem  Capitol  Flouring-mill  Com- 
pany, Limited,  J.  E.  Ilenkle,  Jacob  Ilenkle,  and  John  Kitson, 
and  W.  B.  Hamilton,  Zephin  Job,  and  B.  R.  Job,  answered  sep- 
arately; that  is,  the  flouring-mills  company  filed  its  answer; 
the  Ilenkles  and  Kitson,  who  were  partnei-s,  filed  their  answer 
jointly ;  and  Hamilton  and  Zephin  and  B.  R.  Job,  who  were  also 
partners,  filed  their  answer  jointly.  The  said  respondents  in 
their  said  several  answers  denied  the  main  allegations  of  the 
complaint,  and  set  up  certain  new  matter.  The  flouring-mills 
company  alleged  that  they  purchased  and  paid  full  cash  value 
for  all  of  the  wheat  they  received,  or  that  came  into  their  posses- 
sion, at  or  about  the  time  of  the  alleged  conversion.  Henkle  & 
Co.  alleged  that  they  were  the  owners  of  a  quantity  of  wheat 
which  had  been  stored  in  said  warehouse;  that  it  was  mixed  in 
bins  with  other  wheat  of  like  grade  and  quality,  with  the  as- 
sent of  the  owners  thereof;  and  that  they  took  only  2,800  bush- 
els of  wheat,  which  was  a  less  amount  than  that  stored  therein 
belonging  to  them,  and  which  was  delivered  to  them  by  said 
Blair.  And  Hamilton  &  Co.  alleged  that  they  were  the  own- 
ers of  about  13,132  bushels  of  wheat,  which  had  theretofore 
been  stored  in  said  warehouse,  mixed  as  Henkle  &  Co.'s  wheat 
was,  and  that  Blair  delivered  the  same  to  them;  which  wheat, 
so  received  by  the  respondents,  was  alleged  in  the  several  an- 
swers to  be  the  wheat  they  were  charged  with  having  converted. 
The  said  Blair  filed  no  answer  to  the  complaint. 

Upon  the  trial  of  the  action  the  respondents'  counsel  con- 
tended that  there  could  be  no  recovery  against  the  respondents 
unless  the  alleged  conversion  of  the  wheat  was  their  joint  act, 
and  the  circuit  judge  who  presided  at  the  trial  seemed  to  be  of 
that  opinion,  as  he  finally  non-suited  the  appellant  apparently 
upon  the  ground  that  the  respondents'  acts  in  the  premises  were 
several ;  that  is,  the  flouring  mills  company  acted  for  themselves ; 
Henkle  &  Co.  for  themselves,  and  Hamilton  &  Co.  for  them- 
selves. The  theory  of  the  appellant's  counsel  seems  to  have 
been  that  they  had  a  right,  after  proving  the  amount  of  wheat 


Sec.  3.1  cooper  v.  blair.  '^'^ 

•mpellaut  had  iu  the  warehouse  at  the  time  of  the  alleged  con- 
version, to  show  how  much  the  flouring  mills  company  took  out 
of  it  how  much  Ilenkle  &  Co.  took  out  of  it,  and  how  much  Ham- 
ilton &  Co.  took  out  of  it;  and,  after  ascertaining  what  portion 
of  the  wheat  so  taken  belonged  to  him,  recover  from  said  sev- 
eral companies  the  amount  taken  by  them,  respectively,  of  his 

wheat. 

It  must  be  conceded,  I  think,  that   these    severaj^compaaies. 

acted  independentlx,oLeach  other  in  what  they  did  in  regard  to 
Tv;7r7^kj^7i;rth;r;vi^        There  is  not  the  slightest  trace  of  tes- 
TTi^ny  in  the  case,  as  I  can  discover,  that  they  combined  or  co- 
operated in  taking  away  any  wheat  from  the  warehouse  in  ques- 
tion    The  taking  was  at  different  times,  and  was  clearly  several 
acts'  and  resulted  from  their  several  motives.     Eaxjh  company 
took  the  wheat  they  supposed  they  were  severally  entitled  to, 
and  at  their  own  instance,  and  upon  their  own  responsibility ;  - 
and    unless  the  appellant's  counsel  can  maintain  the  theory  be- 
fore  indicated,  the  non-suit  granted  by  the  circuit  judge  must 
stand     There  were  a  number  of  exceptions  taken  to  the  ruling 
of  the  jud-e  at  the  trial  in  excluding  testimony  offered  upon 
the  part  of  the  appellant;  but  they  are  unimportant   unless  the 
appellant  had  the  right  to  recover  severally  against  the  respond- 
ents, as  before  indicated. 

The  view  the  appellant's  counsel  suggested  in  reference  to 
this  .luestion  seems  hardly  tenable;  yet  it  has  been  presented 
^vlth  much  force  and  ability,  and  is  sustained  by  many  of  the 
earUer  decisions.     Jackson  v.  Woods,  5  Johns.  278,  and  cases 
there  cited     That  was  a  case  of  ejectment  against  five  defend- 
ants   who  entered  into  the  coiLsent  rule    jointly,    and    pleaded 
jointly     Two  of  the  lessors  of  the  plaintiff  proved  title  to  the 
premises  in  themselves,  and  that  the  defendants  were  in  pos- 
session in  separate   and  distinct  parts,  but  not  jointly.     The 
jury  found  each  defendant  separately  guilty  as  to  that  part  ot 
the  premises  in  his  separate  possession,  and  not  guilty  as  to  the 
other  parts  possessed  by  the  other  defendants;  and  the  court 
held  that  the  plaintiff  was  entitled  to  judgment  against  all  the 
defendants  severally  according  to  the  verdict.     Kent,  who  was 
then  chief  justice  of  the  court,  laid  it  down  as  a  rule  in  actions 
for  torts  against  several  who  joined  in  the  plea  that  the  jury 
mi.'ht  find  some  guilty  of  part,  or  at  one  time,  and  the  other 
guilty  of  another  part,  or  at  another  time,  and  that  in  either 


278 


PAJITIES   TO    ACTIONS.  [CUAP.  II. 


of  those  cases  thoy  mi^'lit  asse.ss  several  damaj^es;  and  ref.Tred 
to  several  early  English  cases  that  sanctioned  such  course. 

The  case  is  very  similar  in  principle  to  that  of   Jackson    v. 
Hazen,  2  Johns.  437.    There  the  action  was  against  five  di'fend- 
ants,  who  entered  into  the  consent  rule  jointly,  and  pleaded 
jointly ;  but  it  appeared  upon  the  trial  that  two  of  them  occu- 
pied distinct  parcels  of  the  premises  in  severalty,  and  that  the 
other  three  possessed  the  residue  of  the  premises  jointly.    Ford, 
for  the  plaintiff,  contended  that  all  the  facts  necessary  to  be 
proved  in  an  action  for  trespass  were  admitted  by  the  consent 
rule,  and  that  the  defendants  could  have  prevented  the  difficulty 
and' hardship  that  might  arise  out  of    a    claim    to    the    mesne 
profits  by  appearing  separately  for  their  distinct  parcels;  but 
the  court  held  that  the  plaintiff  was  bound  to  prove  a  joint  pos- 
session of  all  the  defendants,  and  that  the  two  defendants  who 
held  separately  were  entitled  to  judgment  against  the  plaintiff. 
Spencer,  J.,  who  delivered  the  opinion  of  the  court,  said  that 
the  only  case  which  seemed  to    warrant    a    general    judgment 
against  all  the  defendants  was  that  of  Claxmore  v.  Searle,  1  Ld. 
Raym.  729,  which  stated  the  practice  to  be,  where  some  of  the 
defendants  appeared  at  the  trial  and  confessed  lease,  entry,  and 
ouster,  and  the  others  did  not,  that  with  regard  to  such  as  did  not 
appear,  a  verdict  was  to  be  entered  for  their  not  appearing  to 
confess,  etc. ;  but  the  court  held  that  this  rule  did  not  proceed 
upon  the  principle  arising  in  the  case;  nor  did  it  necessarily 
follow  that  the  rule  contemplated  distinct  possession  as  to  those 
who  did  not  confess;  that  in  many  respects  there  was  an  analogy 
between  actions  of  ejectment  and  trespass,  and  perhaps  in  all 
respects,  except  as  to  the  quantity  of  interest  necessary  to  main- 
tain the  one  or  the  other ;  that,  in  an  action  of  trespass  against 
several,  it  would  not  be  competent  for  the  plaintiff  to  give  in 
evidence  the  distinct  acts  of  the  individuals,  without  showing 
also  that  such  acts  were  in  performance  of  a  concert  and  agree- 
ment among  all  the  defendants.     Then,  and  in  that  ease  only, 
would  all  be  responsible  for  the  act  of  each.    In  this  view  Chief 
Justice  Kent  and  Van  Ness,  J.,  concurred. 
,,SU:„^  ,v-iL^        These  two  cases  have  been  referred  to  in  subsequent  decisions 
-^^3x^.^^-JC    Qf  the  New  York  courts,  but  have  never  been  cited  except  in 
s^^  aw-^— ^     ejectment  proceedings  as  they  were  conducted  at  common  law; 
^^^^^^^^J^!^]^^  and  all  that  is  said  by  the  court  in  either  of  them  is  only  author- 
,XJSc^^^  ity  in  ejectment  suits  as  formerly    prosecuted.     The    doctrine 
'^l^^^ — -»  those  cases  attempted  to  establish  was    evidently    intended    to 


Sec.  3.]  cooper  v.  blair.  279 

soften  the  rigor  of  the  rules  in  ejectment  cases.     A  strict  en- 
foreement  of  them  left  the  defendant  no  grounds  to  stand  upon  r^,  ^a. 
except  to  defeat  the  lessor's  claim  of  title  to  the  premises,  as  he         '^TV- 
was  compelled  to  confess  the  leasing,  entry,  and  ouster  as  a  con-  ^^JTv^Z^  -t 
dition  upon  which  he  was  permitted  to  defend.     This,  however,  j^,,^^;;,,^,^^ «.  o 
operated  as  no  hardship,  except  where  the  action  was  against  <x/*X»>^^^ 
several,  each  occupying  distinct  parcels  of  the  demanded  prem-  ^-Av^s^  V 
ises.     In  that  ease,  if  the  fiction  of  law  applicable  to  that  class."    ^^p*^ 
of  actions  were  carried  out  literally,  the  defendants  would  <  ach^^''^ 
have  to  confess,  or  be  deemed  to  have  confessed,  the  ouster  as  ^^ 
to  the  whole,  and  be  liable  to  the  whole  amount  of  the  mesne    -^^     -  ^^ 
profits;  and  to  avoid  so  palpable  an  injustice  it  was  necessary  ■^^..4,  »vO<^, 
either  to  compel  the  plaintifl:"  to  enter  into  a  separate  consent  ^ 

rule  with  each  defendant,  or  not  allow  a  recovery  without  prov- 
ing a  joint  po<5session  of  all  the  defendants,  as  in  Jackson  v. 
Hazen,  or  by  allowing  a  finding  of  guilty  against  each  defend- 
ant separately  as  to  the  part  of  the  premises  in  his  separate  pos- 
session, and  not  guilty  as  to  the  balance,  as  in  Jackson  v.  Woods. 
It  was  only  an  expedient  adopted  to  prevent  injustice;  and,  in 
order  to  preserve  consistency,  I  imagine,  Chancellor  Kent,  in 
the  latter  case,  cited  the  authorities  in  Cro.  Car.,  and  the  case 
in  the  exchequer  chamber,  and  in  11  Coke,  and  from  Tidd,  Prac. ; 
for  I  very  much  doubt  that  that  distinguished  jurist  would  ever 
have  decided,  as  an  abstract  question,  that  parties  severally 
committing  di.stinct  trespasses  could  be  united  in  an  action,  and 
several  judgments  be  recovered  against  them.  Whatever  may 
have  been  the  rule  upon  the  subject  in  the  English  courts,  no 
such  practice  ever  obtained  in  the  United  States,  unless  under 
special  statutory  provision.  Nor  do  I  believe  that  the  later  Eng- 
lish authorities  recognize  any  such  doctrine. 

Chitty  says:  "And,  if  a  joint  action  of  trespass  be  brought 
against  several  persons,  the  plaintitf  cannot  declare  for  an  as- 
sault and  battery  by  one,  and  for  the  taking  away  of  goods  by 
the  others,  because  these  trespasses  are  of  several  natures.  And 
in  trover  against  several  defendants  all  cannot  be  found  guilty 
in  the  same  court  without  proof  of  a  joint  conversion  by  all."  1 
Chit.  PL,  86.  And  it  Ls  declared  in  note  "i"  to  the  case  of  Wil- 
braham  v.  Snow,  2  Saund.  pt.  1  p.  47,  in  these  words:  "It  is 
plain  that  several  defendants  cannot  be  found  guilty  in  trover 
without  evidence  of  a  joint  conversion.  Therefore,  where  bank- 
rupts and  their  assignees  were  joined  as  defendants  in  an  ac- 
tion of  trover,  and  a  verdict  passed  against  all  the  defendants 


280 


PARTIES   TO    ACTIONS. 


[CilAP.  II. 


upon  evidence  that  the  bankrupts,  before  their  bankruptcy,  had 
converted  the  goods  of  the  plaintiff  by  pledging  thera  without 
authority,  and  that  the  a.ssignees,  aftei-  the  bankruptcy,  had  re- 
fused to  deliver  them  up  on  demand,  the  court  held  that  the  con- 
versions were  separate,  and  granted  a  new  trial  for  want  of  evi- 
dence of  a  joint  convereion ; "  citing  Nicholl  v.  Glennie,  1  Maule 
&  S.  588.  In  Add.  Torts,  §1321,  the  same  rule  is  declared,  and 
same  reference  made  to  1  Maule  &  S.  588.  The  author  further  re- 
marks in  that  section  that,  "where  an  action  has  been  brought 
against  several  joint  trespassers,  the  evidence  must  be  confined 
to  the  joint  offenses  in  which  all  are  implicated. ' '  Mr.  Pomeroy 
in  his  work  on  Remedial  Rights  and  Remedies,  in  section  308, 
after  stating,  in  the  previous  section,  that  those  who  have  united 
in  the  commission  of  a  tort  to  the  person  or  the  property, 
whether  the  injury  be  done  by  force,  or  be  the  result  of  negli- 
gence or  want  of  skill  or  of  fraud  and  deceit,  are  generally  liable 
to  the  injured  party  without  any  restriction  or  limit  upon  his 
choice  of  defendants  against  whom  he  may  proceed,  says:  "In 
order,  however,  that  the  general  rule  thus  stated  should  apply^ 
,-t^  and  amnion  of  wrongdoers  in  one  action  should  be  possible,  there 
must  be  some  community  in  the  wrongdoing  among  the  parties 
5  who  are  to  be  united  as  co-defendants.    The  injury  must  in  some 

sense  be  their  joint  work.  It  is  not  enough  that  the  injured 
party  has,  on  certain  grounds,  a  cause  of  action  against  one  fur 
the  physical  torts  done  to  himself  or  his  property,  and  has,  on 
entirely  different  grounds,  a  cause  of  action  against  another  for 
the  jame  physical  tort.  There  must  be  something  more  thau  the 
existence  of  two  separate  causes  of  action  for  the  same  act  or 
default  to  enable  him  to  join  the  two  parties  liable  in  the  single 
action."  This  principle,  he  there  says,  is  of  universal  applica- 
tion. In  Forbes  v.  Marsh,  15  Conn.  384,  the  court  held  that, 
"where  the  plaintiff  in  an  action  of  trover  against  B  and  C,  in- 
troduced evidence  proving  a  conversion  by  B  only,  without  the 
participation  or  knowledge  of  C,  that  it  was  not  then  competent 
to  prove  a  distinct  conversion  by  C." 

This  was  the  predicament  the  appellant  found  himself  in  at 
the  trial  of  this  case.  He  had  joined  the  three  parties,  the 
flouring-mills  company,  Henkle  &  Co.,  and  Hamilton  &  Co.,  in 
a  single  action,  and  then  attempted  to  introduce  evidence  prov- 
mg_a^onyersion  by  one  of  them  only.  He  could  only  be  per- 
mitted to  prove  an  act  of  conversion  upon  the  part  of  one  of  the 
parties  under  an  offer  to  show  that  the  others  participated  in 


Sec.  3.j  cooper  v.  blair.  281 

the  aet  in  some  way;  and,  unless  he  could  make  such  showing, 
he  would  be  confined  to  his  claim  against  the  one  party.  Or  he 
might  have  been  permitted  to  show  that  all  the  parties  took  and 
carried  away  the  wheat  at  different  times,  under  an  offer  to 
show  that  there  had  been  a  combination  entered  into  between 
them  for  that  purpose;  and,  if  he  failed  to  show  the  common 
purpose,  he  would  have  had  to  submit  to  a  non-suit  unless  the 
court  permitted  him  to  amend  his  complaint,  and  proceed  against 
one  of  the  parties.  Section  99  of  the  Civil  Code  is  broad  enough, 
I  think,  to  have  allowed  such  an  amendment;  but  to  attempt  to 
proceed  against  the  respondents  jointly  on  account  of  a  several 
liability  is  not  warranted  by  law  in  such  a  case  as  this  was.  We 
virtually  held  that  in  Dahms  v.  Sears,  11  Pac.  Rep.  891  (recent- 
ly decided  by  this  court).  The  dilficulty  in  this  class  of  cases 
has  been  in  attempting  to  apply  the  general  rule  that  torts  are 
joint  and  several,  and  that  in  a  joint  action  against  several  de- 
fendants one  or  more  may  be  found  guilty,  and  the  others  ac- 
quitted; but  in  the  class  of  cases  to  which  that  rule  applies,  as 
was  said  by  Judge  Dillon,  in  Turner  v.  Hitchcock,  20  Iowa,  316. 
the  injury  sued  for  is  an  entirety.  "The  injury  is  single,  though 
the  wrongdoers  may  be  numerous."  It  has  no  application  to  a 
case  where  distinct  injuries  have  been  committed  by  the  several 
defendants.  If  B  were  to  go  to  A's  barn,  and  unlawfully  carry] -To  ojJo*^ 
away  10  bushels  of  his  wheat,  and  C,  in  like  manner,  were  to  gol -^w:^J>,_i>>^. 
at  another  time,  and  carry  away  30  bushels  more,  and  there  had  [  v-ysro^^^^jiL  ' 
been  no  concert  of  action  between  them  in  the  matter,  but  each  c 
had  acted  for  him.self,  it  would  be  absurd  to  sue  them  together/ 
in  one  action  for  the  conversion  of  the  amount  of  wheat  so  taken./ 
Yet  this  is  the  position  the  appellant  occupies  in  the  case  at  cir-* 
cuit,  and  he  either  had  to  confine  his  proof  to  one  of  the  acts, 
and  to  the  party  committing  it,  or  obtain  leave  of  the  court  to 
amend  his  complaint  after  the  proof  disclosed  the  dilemma  he 
was  in,  or  submit  to  a  nonsuit.  There  could  have  been  only  one 
recovery  in  the  ca.se,  and  that  had  to  be  against  the  party  or 
parties  who  did  the  aet  for  which  it  was  obtained. 

In  Currier  v.  Swan,  63  Me.  323,  in  an  action  of  trespass  for 
an  assault  against  four  parties,  the  jury  rendered  a  verdict  in 
regular  form  against  them  all,  but  apix*nded  to  it  an  apportion- 
ment of  the  damages  among  them  severally.  The  court  held  that 
the  appended  part  must  be  rejected ;  that  but  one  verdict  could 
be  rendered,  and  that,  therefore,  the  damages  must  be  joint,  and 
not  several ;  that  the  question  was,  what  damages  had  the  plain- 


282  PARTIES  TO   ACTIONS.  [CUAP.  II. 

^^"y^v^-  tiff  sustained?  and  that  for  these,  whatever  they  were,  all  the 
^-^/vAVfiJIar-rJ^articipants  in  the  assault  were  liable;  that  there  were  no  de- 
^'^  "'V  "^-^grees  of  guilt;  and  referred  to  several  Massachusetts  cases  as 
:  v^V*^-V  sustaining  that  view.  And  in  Sutherland  on  Damages  it  is  said 
L  \^  'tW  ^jj^^  ' 'the  extent  of  individual  participation  in,  or  of  expected 
'^*"  henefitfi'om.  a  .joint  tort,  is  inunaterial;  each  and  all  the  tort 

'"^^  feasors  are  liable  for  the  entire  damage."    1  Suth.  Dam.  211. 

We  think  the  judgment  of  the  circuit  court  should  be  affirmed. 

V  ^^ 


GREENBERG  v.  WHITCOMB  LUMBER  CO. 

90  Wis.  225.      [1895.] 

Newman,  J.  (after  stating  the  facts)  :  The  complaint  states, 
in  substance,  that  the  defendant  the  Whitcomb  Lumber  Com- 
pany is  a  corporation;  that  the  defendant  Parian  Semple  was 
one  of  its  officers  and  its  general  managing  agent ;  that  its  busi- 
ness was  the  manufacturing  of  timber  into  firewood;  that  it 
operated,  in  this  work,  a  machine  which  was  defective  and  dan- 
gerous; that  it  knew  the  machine  to  be  defective  and  danger- 
ous; that  the  defect  which  rendered  it  dangerous  was  that  the 
saw  was  defectively  and  insecurely  fastened  to  its  shaft;  that 
the  plaintiff  was  employed  to  work  upon  or  with  this  machine; 
that  he  was  inexperienced  in  such  work  and  as  to  such  machine, 
and  did  not  know  of  the  defect  of  the  machine ;  that  the  defend- 
ants knew  that  he  was  so  inexperienced  and  ignorant ;  that  plain- 
tiff received  no  instructions;  that  he  was  injured,  without  his 
fault,  by  reason  of  the  defect  of  the  machine.  Fairly  construed, 
this  is  the  substance  of  the  complaint.  It  was  the  duty  of  the 
defendant  the  Whitcomb  Lumber  Company  to  furnish  the  plain- 
tiff a  safe  machine  to  work  with,  and,  knowing  the  defect  of 
the  machine  and  that  he  was  inexperienced,  to  instruct  him  of 
the  dangers  of  the  employment.  Not  to  do  this  was  negligence. 
The  complaint  states  a  cause  of  action  against  the  defendant  the 
Whitcomb  Lumber  Company. 

Whether  the  complaint  states  a  cause  of  action  against  the  de- 
fendant Parian  Semple  is  more  complex.  He  was  the  agent  or 
servant  of  the  Whitcomb  Lumber  Company,  charged  with  the 
oversight  and  management  of  its  operations,  and  with  the  duty 
of  providing  a  safe  machine  for  the  work  in  which  the  plaintiff 


283 


Sec.  3.]  greenberg   v.  whitcomb  lumber  co. 

^^-as  engaged.     The  principle  is  well  settled  that  the  agent  or 
servant"is°responsiblc  to  third  persons^v  for  injuries  which  are 
•^a"sio^Tbiriiis  misfeasance,  and  notfoTthose  occasioncd_bx 
hi7^^^^;;^-fpnsnno(>.     Some  confusion  has  arisen  in  the  cases, 
fi^m  a  failure  to  observe  clearly  the  distinction  between  non- 
feasance and  misfeasance.     These  terms  are  very  accurately  de- 
fined, and  their  application  to  questions  of  negligence  pointed 
out,  by  Judge  :^Ietcalf  in  Bell  v.  Josselyn,  3  Gray  (Mass.)  309. 
"Non-feasance,"  says  the  learned  judge,  "is  the  omis.sion  of  an 
act  which  a  person  ought  to  do;  misfeasance  is  the  improper 
doing  of  an  act  which  a  person  might  lawfully  do;  malfeasance 
is  the  doing  of  an  act  which  a  person  ought  not  to  do  at  all." 
The  application  of  these  definitions  to  the  case  at  bar  is  not 
diflicult.     It  was  Semnlels  duty  to  have  had  this  machine  safe. 
His  neglect  to  do  so  was  non-f^easantlti.     But  that  alone  would 
not  have  harmed  the  i)laintiir,  if  l^*^  ^^^^^^  "^^  set  him  to  work 
upon  it     To  sL>t  hirrrf^w^rkimgn  this  defective  and  dangerous 
machine,  k^wing  it  to  be  dangerous,  wasjjoin^jmproperly  an 
^;T~;^ph  one  mJLdit-  lawfully  d_o_in_aJ^roper  manner.     It  was 
]^isg^an(ii?.     Both  elements,  non-feasance  and  misfeasance,  en. 
ti??d"li^the  act,  or  fact,  which  caused  the  plaintifP's  dam- 
ages     But  the  non-feasance  alone  could  not  have  produced  it. 
The  misfeasance  was  the  efficient  caiise,_j:orJhis  the  defenOanl 
S^le  is  respongbil3jhej>laintift\     Mechem,  Ag.  sec.  o69  ct 
^^.  14  Am    &  Eng.  Enc.  Law,  873,  and  cases  cited  in  note  4; 
Wood    Mast.  &  Serv.   (2d  Ed.)    667;  Osborn    v.    Morgan,    130 
Mass  'l02      The  complaint  states  but  a  single  cause  of  action.  / 
It  is  \hcji\rris  —  "^  nation  against  both  defendants,  arising/ 

^IW^^^:^ZM^SJDL^^^^^^^^J^  Bo  h  mas- 
f|F^M''i^F^^^HC&ih^ir^  of  negligence, 

„iay  be  joined  as  defendants.  Wood,  Mast.  &  Serv  supra; 
Wri-ht  V  Wilcox,  19  Wend.  343;  Phelps  v.  Wait,  30  N.  Y.  78. 
The 'order  appealed  from  by  the  Whitcomb  Lum])er  Company  is 
affirmed,  and  the  order  appealed  from  by  the  plaintiff  ^is  re- 
versed. ^    ^^i^J    (^'    ^^/^ 


284 


PARTIES   TO   ACTIONS. 


[CUAl'.  11. 


SUTTON  V.  CASSELEGGI. 


Jlav3~j[/33^ 


O^-O^NA/^. 


77  Mo.  397.     [1883.] 

Martin,  C.  This  was  an  action  of  ejectment,  commenced  on 
the  second  day  of  November,  1873,  to  recover  a  parcel  of  grroiiud 
on  Third  street  in  Block  63  of  the  City  of  St.  Louis,  containiug 
a  front  of  thirty-two  and  a  half  feet  on  Third  street,  by  a  depth 
of  fifty-four  feet.  The  defendants  filed  separate  answers,  put- 
ting in  issue  the  plaintiff's  title,  and  denying  all  joint  posses- 
sion or  occupancy,  and  setting  up  the  defence  of  the  statute  of 
limitations.  Pauline  Dalton,  in  her  answer,  avers  that  she  is 
the  owner  of  the  lot  of  ground;  that  she  rented  the  south  half 
to  Casseleggi,  and  the  north  half  to  Dolan,  her  co-defendants, 
who  were  in  possession  as  her  tenants  at  the  beginning  of  the 
suit,  and  still  are  in  possession  as  such  tenants.  The  replica- 
tion puts  in  issue  the  new  matter  of  the  answers,  and  contains 
a  denial  of  ownership  in  said  Pauline  to  any  interest  exceeding 
^^^jne-third  thereof.  The  case  was  tried  by  the  court  without  the 
'^'^'^''intervention  of  a  jury,  and  resulted  in  a  judgment  for  plaintiff 
for  an  undivided  one-eighth  of  the  lot  sued  for,  and  for  $1  rents 
and  profits,  and  $1  monthly  value.  Both  parties  appealed  to  the 
St.  Louis  Court  of  Appeals.  The  judgment  was  there  affirmed 
in  all  things.  See  5  Mo.  App.  122.  From  this  judgment  of  af- 
firmance the  plaintiff  has  appealed  to  this  court,  and  the  errors, 
if  any,  made  against  him,  come  before  us  for  correction.  The 
defendants  have  abided  with  the  decision  of  affirmance,  and  have 
prosecuted  no  appeal.     *     *     * 

*  *  *  The  plaintiff  insists  that  he  was  entitled  to  a  judg- 
ment for  the  admitted  rents  and  profits,  and  that  the  court  erred 
in  rendering  a  judgment  for  only  nominal  damages.  This  point 
is  not  noticed  in  the  decision  of  the  court  of  appeals. 

An  action  in  ejectment  must  be  brought  against  the  actual 
occupant  of  the  property.     The  landlord  of  the  occupant  Ls  not. 
a  necessarv  party.     Our  statute  permits  him  to  come  in  and  de- 
fend.    It  has  been  said  that  he  possessed  this  right  at  common 
law,  prior  to  any  statute."    Fosgate  v.  Herkimer  Manufacturing 
Company,  12  N.  Y.  580.     The  plaintiff  sues  the  defendants,  al- 
- "  *-^''*Y*leging  them  to  be  in  joint  possession.  In  their  answers  they  deny 
^^''-^^    the  averment  of  joint  possession.     Dolan  pleads  that  he  is  in 
^*"'*^'^the  sole  possession  of  the  north  half  of  the  lot,  and  has  no  pos- 
session of  the  south  half.     Casseleggi  pleads  that  he  is  in  sole 


.^v-'^.^A. 


Sec.  3.1  sutton  v.  casseleggi.  285 


possession  of  the  south  half,  and  has  nothing  to  do  with  the  north 
half.  Pauline  Dalton  pleads  that  she  is  not  in  actual  possession 
of  either  parcel,  but  that  she  rented  the  north  half  to  Dolan,  and  -^^^^^^^v^ 
the  south  half  to  Casseleggi,  who  occupy  as  her  tenants.  The  >^-Jo-iyiJi/'»o^j, 
evidence  developed  at  the  trial  shows  that  these  pleas  were  lit-  '^^'^^^^"'\  ^ 
erally  true.  When  this  fact  was  developed  it  was  apparent  the  f^"'*^^  ^  7 
plaintift'  had  made  a  misjoinder  of  parties  defendant.  Distinct 
actions  ought  to  be  brought  to  recover  distinct  and  separate  pos- 
sess ion"sr  Keene  v.  Barnes,  29  ]\Io.  377 ;  Walsh  v.  Varney,  38 
Mlch7~T3;  Fosgate  v.  Herkimer  Manufacturing  Co.,  12  N.  Y. 
585.  The  plaintiff  ought  not  to  have  been  allowed  to  proceed  '"^'-^'"•"^^^^'^^ 
with  two  distinct  actions  of  ejectment  in  one.  It  not  appearing  ^  '^^^':>-^-*' 
in  the  petition,  the  defendants  cannot  demur  for  the  misjoinder.    ^-*-V"''^"~*^ 

It  seems  to  me  the  defendants  brought  the  matter  up  properly 
in  an  instruction  that  the  plaintiff  could  not  recover  as  long  as 
he  persisted  in  proceeding  in  this  way.  But  Judge  Scott  inti- 
mates in  Keene  v.  Barnes,  that  the  proper  method  of  taking  ad- 
vantage is  by  motion  to  compel  the  plaintiff  to  elect  as  to  which 
cause  of  action  he  will  proceed  with.  The  instruction  that 
plaintiff'  could  not  recover  ought  to  have  been  treated,  to  say  the 
least,  in  the  nature  of  a  motion  to  elect.  The  instruction  was 
refused  and  judgment  went  for  plaintiff',  but  for  only  nominal 
damages. 

The  error  of  this  practice,  as  it  stands  on  the  record,  is  not  -^xV-^.  ^^--* 
a   material  one  against  the  defendants,  as  to  the  recovery  of.*-*-^  vaj*.^ 
possession  from  them.     Whetlier  their  possession  is  joint  or  sev- 
eral, the  single  writ  for  po.ssession  will  be  the  ^:ame  thing  against 
them  in  effect  as  if  two  writs  issued,  one  again-st  each.    Neither 
is  called  upon  to  respond  for  rents  and  profits  received  by  the 
other.    No  substantial  injustice  can  accrue  to  tliem  by  reason  of 
this  error  of  the  proceeding.    But  when  the  plaintiff  a.sks  for  a  q^^  ^^ 
joint  Judgment  against  them  for  rents,  the  injustioe  at  once  ap-  ^"^ 

pears.     Dolan  would  be  pavintj  the  damages  assessed  for  an 
ouster  from  a  tenement  he  had  nothin<:  to  do  with.     And  the 
same  thing  would  happen  to  Ca.sseleggi.     The  agreed  statement  V^^  >  ^>^ 
of  the  rents  and  protits  relating  to  both  lots,  does  not  help  the  e.*-»x^'5Xsi; 
plaintiff  out.    It  fails  to  show  how  much  ought  to  be  accounted  ^^^^^^aS^Jw 
for  by  Dolan,  and  how  much  by  Ca.sselecrgi,  for  the  two  stores  x^^j^^  ^^.^ 
occupied  by  them  separately.     As  for  Pauline  Dalton,  she  de-   osiUr-n, 
fends  only  as  landlord.    She  ought  not  to  be  called  to  respond 
for  rents  and  damages  which  the    court    is    unable    to    assess 
against  her  tenants  as  the  actual  occupants  of  the  land.     The 


286  PARTIES  TO  ACTIONS.  [ChaP.  II. 

plaintifP  must  take  the  necessary  consequences  of  his  violatiuii 
of  the  proper  method  of  procedure,  in  the  loss  of  his  rents  iiiul 
profits.  lie  will  have  to  be  satisfied  with  getting  his  title  through 
in  the  face  of  such  irregularity. 

So  far  as  the  adjudication  and  recovery  of  his  right  of  pos- 
session is  concerned,  we  allow  the  judgment  to  stand,  because  the 
error  is  immaterial  and  works  no  injustice.  But  we  could  not 
recognize  it  a-s  applying  to  the  rents  and  profits  without  sanc- 
tioning an  injustice  resulting  from  a  violation  of  our  methods 
and  forms  of  procedure.  If  the  action  was  in  the  nature  of  an 
equitable  ejectment,  we  might  consider  the  propriety  of  giving  a 
decree  of  accounting  for  the  rents  and  prolits. 

The  conclusion  we  have  reached  upon  the  whole  case  is,  that 
according  to  the  evidence  in  the  record  the  plaintiff  was  entitled 
under  the  law  to  recover  the  additional  nine-forty-eightlis  of  his 
record  title,  but  that  he  was  not  entitled  to  a  judgment  for  rents 
and  profits  beyond  a  nominal  sum.  The  misjoinder  of  parties 
defendant  does  not  work  any  material  injury  so  far  as  the  re- 
covery of  possession  is  concerned,  but  it  would  result  in  great 
prejudice  to  the  defendants  to  allow  the  damages  to  be  assessed 
as  prayed  for  by  the  plaintiff.  The  judgment  as  rendered  in 
the  circuit  court  might  be  corrected  by  substituting  fifteen- 
forty-eighths  for  one-eighth,  as  therein  recited.  But  we  think 
it  best  to  reverse  the  judgment  of  the  court  of  appeals  and  the 
judgment  of  the  circuit  court,  and  order  the  circuit  court  to  en- 
ter a  new  judgment  in  the  place  of  the  old  one,  in  all  respects 
similar  to  it,  except  as  to  the  amount  recovered,  in  which  the 
new  judgment  will  be  fifteen-forty-eighths  of  the  premises  sued 
for. 

The  other  commissionens  concurring,  the  judgments  of  the 
court  of  appeals  and  the  circuit  court  are  reversed,  and  the 
circuit  court  of  the  city  of  St.  Louis,  is  ordered  to  enter  up  a 
new  judgment  in  conformity  with  the  directions  of  this  decision. 

NICHOLS  V.  MICHAEL. 
23  N.  Y.  264.     [1861.] 

Appeal  from  the  Supreme  Court.  Action  to  recover  the  pos- 
session of  certain  goods,  upon  the  allegation  of  property  in  the 
plaintiffs,  and  a  joint  detention  by  the  defendants. 

In  April,  1S53,  the  defendant  Pinner  purchased  of  the  plain- 


» 
Sec.  3.]  nichols  v,  michael.  287 

tiffs,  the  goods  described  in  the  complaint  (the  purchase  cn^  <y.,o^.  ^ 
amounting  to  $6,500),  on  a  credit  of  four  and  six  mouths,  for 'Y=''^»^^  (V^ 
Avhieh  he  <j:ave  his  two  negotiable  promissory  notes.  Pinner  con-  "^^  ^~r^~>^^-^  { 
tinued  in  business  until  the  August  following  when  he  failed,7r[^]^'^^^ 
and  made  an  assignment  to  the  defendant  Michael,  for  the  bene-  -yvn^.,,,o.,.^<»j3 
fit  of  his  creditors,  giving  preferences.  This  action  was  brought  -tec;:^:^^  \ 
to  recover  the  possession  of  those  goods,  alleging  they  were  ^/■^>-<>-'^^^J>^ 
fi-audulently  obtained.  The  judgment  from  which  this  appeal 
was  brought,  was  obtained  on  a  second  trial.     *     *     * 

The  jury  found  a  verdict  for  the  plaintiffs  for  the  possession 
of  the  property,  and  assessed  the  value  thereof  and  damages  for 
their  detention — the  property  having  been  delivered  to  the  de- 
fendant Michael.  Judgment  was  entered  for  the  plaintiff's, 
which  was  affirmed  on  appeal  at  general  term  in  the  eighth  dis- 
trict. 

James,  J.  Whenever  property  is  obtained  from  another  upon 
credit,  with  the  preconceived  design  on  the  part  of  the  pur- 
chaser to  cheat  and  defraud  the  vendor  out  of  the  same,  the 
vendor,  upon  the  discovery  of  the  fraud,  may  avoid  the  contract 
and  retake  the  property,  unless  it  has  passed  to  the  possession 
of  a  bona  fide  holder  for  value.  Such,  I  understand,  was  the 
conclusion  of  the  court  when  this  case  was  formerly  before  it. 
(18  N.  Y.,  295;  Hall  V.  Nay  lor,  18  N.  Y.,  588.)     *     *     * 

Michael  having  the  goods  in  possession  waa  not  only  a  proper 
but  a  necessary  party  defendant.  But  it  was  insisted  that  Pin- 
ner was  improperly  made  a  party,  and  that  under  the  Code  the 
action  for  the  recovery  of  the  possession  of  personal  property 
can  only  be  maintained  against  one  who  had  in  fact  or  in  law 
the  possession,  control  or  title  at  the  time  of  its  commencement. 

Formerly,  the  action  of  detinue  was  the  proper  action  where 
there  was  a  wrongful  detainer  (2  Saund.,  84).     There  are  some 
dicta  in  the  books,  that  this  action  w^ould  not  lie  unless  the  de- 
fendant was  in  posses.sion  (Bui.  X.  P.,  51;  1  Selw.  N.  P.,  546)  ; 
but  that  was  not  so.     The  defendant  was  liable  in  the  action, 
though  he  had  delivered  possession    to    another    before    action 
brought.     (Comyn's  Dig.,  A.;  Jones  v.  Dowle,  9  M.  &  W.,  19;  <^ ^^.y^^,^,^.^  ^ 
Garth  v.  Howard,  5  C.  &  P.,  346.)     In  Jones  v.  Dowle,  Parke,  >->-<i<iA..Ar-^-\ 
B.,  stated  the  rule  to  be  "that  detinue  does  not  lie  against  one  '\r-s.-^cj>^-''^'^-9^ 
whomever  had  possession  of  the  chattel,  but  does  against  him    Www..**. 
who  once  had,  but  has  improperly  parted  with  i"t^    And  Chitty 
says,  "if  he  wrongfully    delivered    the    goods    to    another    he 
is  liable;  and  I  think  the  true  rule  was,  that  detinue  would  lie 


288 


PARTIES   TO   ACTIONS. 


[ClIAl*.  II. 


^::5iijS0^  wherever  the  defendant  had  been  in  possession,  whether  he  re- 
j;,^  Sy.^  tained  it  or  had  wron^4"uily  parted  with  it."  In  this  State  the 
.•..^^  action  of  detinue  was  abolished  by  the  Revised  Statutes,  and 

^.j-j^  •  WjuK^^Axthat  of  replevm  extended  so  as  to  serve  all  the  purposes  of  both 
>j^-^  vo-Jji  actions,  and  under  that  statute  the  action  of  replevin  would  lie. 
jryA^^***^  although  the  defendant  had  parted  with  the  property.  (2  R.  S., 
^  ^^'"^*^'  522,  sees.  11,  19;  22  Wend.,  602.)     *     *     * 

In  this  view  of  the  case,  an  action  properly  laid  against  Pin- 
ner, notwithstanding  he  had  assigned  and  delivered  the  property 
to  Michael.  He  had  fraudulently  obtained  the  property  and  had 
it  in  his  possession,  and  wrongfully  parted  with  it.  Michael 
was  nut  a  bona  fide  purchaser;  the  property  was  in  his  custody 
as  trustee,  for  the  benefit  of  Pinner's  creditors.  Pinner  having 
an  interest  in  the  residuum  after  paying  his  debts.  Here  was 
such  a  connection  as  would  sustain  a  joint  action  against  the 
defendants.  Pinner  had  fraudulently  obtained  the  goods  and 
wrongfully  transferred  them  to  Michael  to  dispose  of  them  as 
his  trustee ;  Michael  had  the  possession  and  refused  to  surrender 
it  on  demand.  The  Code  provides  that  any  person  mav  be 
made  a  defendant  who  has  or  claims  an  interest  in  the  con 


1rt-«>>v. 


troversy  adverse  to  the  plaintiff,  or  who  is  a  necessary  party  to 
a  complete  determination  or  settlement  of  the  questions  involve 
therein.  (Sec.  118.)  Both  tb^sp  defendants  claim  an  interest 
in  the  goods  adverse  to  the  plaintiffs;  Pinner  claiming  that  the, 
purchase  of  the  goods  was  free  from  fraud,  and  that  they 
should  be  retained  by  his  assignee,  and  disposed  of  for  the  bene- 
fit of  creditors — Michael  claiming  the  pos'session  for  the  same 
purpose,  and  refusing  to  surrender  on  demand.  They  were 
properly  joined  as  defendants. 

I  have  been  unable  to  discover  any  error  which  calls  for  a 
reversal  of  this  case,  and  the  judgment  should  therefore  be  af- 
firmed, with  costs. 

Selden,  J.  There  was  no  doubt  sufficient  evidence  to  justify 
the  submission  of  this  cause  to  the  jury,  upon  the  question  of 
fraudulent  misrepresentation  and  concealment  on  the  part  of 
Pinner,  when  he  purchased  the  goods;  and    as   the    defendant 


Michael  advanced  nothing  npon  t.hp  faith  of  Pinner's  title,  he 
^  in  no  better  situation  than  Pinner  himself.  If  the  case  was 
made  out  as  to  Pinner,  the  title  of  Michael  under  the  assign- 
ment must  of  course  fail,  and  he  had  no  right  to  refuse  to  de- 
liver the  goods  upon  demand. 

It  is  insisted  that  an  action  to  recover  possession  will  not  lie 


^EC.  3.]  NICHOLS  V.   ilICH.U£L.  289 

against  Pinner,  because  he  was  not  in  possession  al  tlie  time  of 
the  commencement  of  the  suit;  and  because  his  previous  posses- 
sion was  rightful,  no  attempt  having  been  made  by  the  plaintiffs 
to  rescind  until  after  the  assignment  and  delivery  to  Michael; 
and  that  at  all  events  there  can  be  no  recovery  against  Pinner 
and  ilichael,  jointly.    These  objections  are,  I  think,  sufficiently 
answered  by  the  cases  of  Garth  v.  Howard  et  al  (5  Car.  &  Pa., 
346),  and  Jones  v.  Dowle  (9  Mees.  &  Wels.,  19).    In  the  first  of 
these  cases,  the  defendant  Howard,  being  lawfully  in  possession 
of  certain  plate  belonging  to  the  plaintiff,  had,  without  authority 
from  the  plaintiff,  pledged  it,  with  the  other  defendant  Fletcher 
for  200  pounds.    The  plaintiff"  demanded  the  plate  of  the  latter, 
and  then  brought  detinue  against  both.     It  was  objected  there, 
as  it  is  here,  that  Howard  had  no  possession  at  the  time  of  the 
commenceraent  of  the  suit,  and  hence  the  action  would  not  lie 
against  him.     The  court  held,  that  the  action  would  lie  against 
both.    TiND.vi.,  C.  J.,  said:    "The  verdict  must  pass  against  both 
defendants,  as  one  could  not  stand  in  a  better  situation  than  the 
other."     The  decision  in  this  case  was  put    partly    upon    the 
ground  that  the  defendant  Howard  had  not  assumed  to  part 
with  the  whole  interest  in  the  property,  but  retained  some  con- 
trol over  it  by  virtue  of  the  right  of  redemption.    But  the  Chief 
Justice  also  says:     "The  question    is,    whether    Howard    has 
wrongfully  pledged.    If  he  has  done  so,  he  is  answerable."    The 
other  case,  viz. :  Jones  v.  Dowle,  fully  sustains  the  latter  ground. 
There  the  plaintiff  had  bought  a  picture  at  an  auction,  at  which 
the  defendant  acted  as  auctioneer.     The  latter,  by  mistake,  en- 
tered the  name  of  one  Clift  as  the  purchaser,  and  delivered  the 
picture  to  him.     The  plaintiff  demanded  the  picture  of  Clift, 
who  refused  to  deliver  it,  and  then  brought  detinue  against  the 
auctioneer.     The  counsel   for  the  defendant  insisted    that    the 
plaintiff  was  bound  to  show  that  the  picture  was  in  the  posses- 
sion or  custody  of  the  defendant,  or  of  an  agent  over  whom  he 
could  exercise  control,  at  the  time  of  bringing  the  action.    But 
the  court  overruled  the  objection.     Parke,  B.,  said :     "Detinue^ 
does  not  lie  against  him  who  never  had  possession  of  the  chat-Y 
tel ;  but  it  does  against  him  who  once  had,  but  has  improperlyj 
parted  with  the  possession  of  it." 

The  theory  upon  which  these  cases  proceed  is  perfectly  sound, 

and  applies  directly  to  the  present  case.    It  is,  that  where  a  per- 

son  is  in  pn^.ession_of  goods  belonging  to  another,  which  he  is 

^^^^^;p^3-g^l[^^7;^[^^^l^^  without  authority  from  the. 

19 


290  PARTIES   TO   ACTIONS.  [CHAF.  11, 

owner,  parts  with  that  possession  to  one  who  refuses  to  deliver 
them,  heis  responsible  in  detinue  equally  with  the  party  re- 
fusing. He  contributes  to  the  detention.  It  is  the  consecjuence 
oi!  his  own  wrongful  delivery.  The  action  in  snob  nnscs  mny 
proQerlv  be  brought  against  both ;  because  the  acts  ofjboth  unite 
in  producing  the  detention^ 

It  doesltioFaffect  the  principle,  that  Pinner  in  this  case  came 

to  the  possession  of  the  goods  by  delivery,  and  under  the  former 

purchase,  and  not  as  a  trespasser.     If  they  were  fraudulently 

obtained,  he  had  no  right  to  retain  possession  for  one  moment  as 

against  the  plaintiffs,  and  could  transfer  no  such  right  to  his 

-«SC  ^^.AM^assignee.     The^  action  proceeds,  not  upon  the  ground  of  a  tor- 

'^-^•^^'^-^^'^  tious  taking,  but  of  j_ wrongful  detention ;  and  to  this,  Pinner 

'  "'^'^..X^    has  contributed  by  placing  the  goods  in  the  possession  of  the 

^^5E;;:;;S5Uvs.defendant  Michael,  who  refused  to  deliver  them.    The  case  can- 

,,,o->,frv^.-|^  not  be  distinguished  in  principle  from  the  two  English  cases, 

'      to  which  I  have  referred.*         #     *     * 

Judgment  affirmed. 

SIMMONS  V.  SPENCER. 
9  Fed.  (C.  C.  Dist.  Cal.)  581.     [1S81.] 

Hallett,  D.  J.  The  first  and  second  counts  of  the  complaint 
set  forth,  in  substance,  a  sale  of  certain  property,  which  the 
plaintiff  alleges  belonged  to  him,  and  conveyances  from  the 
plaintiff  to  McCartney,  and  from  ^McCartney  to  the  defendant 
Spencer,  which  conveyances  were  deposited  with  the  Merchants' 
&  Mechanics'  Bank  of  Leadville,  to  be  delivered  upon  payment 
of  a  sum  of  money,  amounting  to  $20,000,  for  the  use  of  the 
plaintiff.  By  instructions  given  upon  the  leaving  of  the  deeds 
with  the  bank,  the  money  was  to  be  deposited  to  the  credit  of 
the  plaintiff  in  this  suit.  Plaintiff  received  $7,000  of  this  sum, 
and  $13,000,  which  was  afterwards  paid  by  the  purchaser,  who- 
ever he  may  be,  was  not  by  the  bank  placed  to  the  credit  of  the 
plaintiff,  but  was,  in  fact,  turned  over  to  the  defendant  Spencer. 
And  upon  this  state  of  facts  it  is  claimed  that  a  liability  has 
arisen  upon  the  part  of  all  the  defendants  to  pay  the  plaintiff 

*The  modern  actions  of  replevin  and  ejectment  are  generally  regu- 
lated by  local  statutes,  specifically  designating  the  proper  and  neces- 
sary parties. 


Sec.  3.]  Simmons  v.  spencer.  291 

this  Slim  of  $13,000.  The  structure  of  these  two  counts  is  lor 
money  due  upon  a  contract ffor  money  had  and  received  by  the 
defendants  to  the  plaintiff's  use.  Nothing  is  said  about  any 
conversion  of  the  money  by  the  defendants  to  their  owti  use, 
and  there  is  nothing  in  the  counts  to  indicate  that  they  are 
based  upon  the  theory  that  a  tort  was  committed  by  the  defend- 
ants in  receiving  this  money  and  appropriating  it  in  the  way  in 
which  it  is  alleged  they  disposed  of  it. 

In  order  to  maintain  an  action  as  for  money  had  and  received 
it  must  appear  that  the  money  was  jointlu  received  by  all  the 
defendants,  and  upon  that  the  law  may  imply  a  promise  on  the_ 
part  of  all  jtojjav  it  to  the  rightful  owner ;  and  although,  upon 
the  facts  stated  here,  there  may  be  a  liability  in  that  form  of 
action  against  Spencer  alone,  <u-  against  the  parties  constituting 
the  Merchants'  &  Mechanics'  Bank  of  Leadville  alone,  there 
cannot  be  a  joint  liability  on  the  ])art  of  all  these  persons  in 
tliat  form  of  action,  because  they  did  not  jointly  receive  this 
sum  of  money.  The  allegation  is,  in  these  counts,  that  the 
"money  was  received  by  the  Merchants'  &  Mechanics'  Bank  of 
Leadville,  and  by  it  wrongfully  and  fraudulently  turned  over 
to  the  defendant  Spencer.  That  may  make  a  liability  as  for 
money  had  and  received  on  the  part  of  these  parties,  severally, — 
that  is,  upon  the  part  of  the  persons  constituting  the  bank  and  \  '^*"^^~'^ 
upon  the  part  of  Spencer,  severally ;  but  it  cannot  be  a  liability  ^^^,^2^  c 
arising  by  contract  on  the  part  of  all  of  them,  because  they  did  ^^^^^^j^y. 
not  jointly  and  collectively  receive  this  money. 
~  As  to  whether  the  action  may  be  maintained  against  them 
jointly  as  for  a  tort, — in  sub.stance,  as  an  action  of  trover, — 
there  is  some  doubt.  It  Is  laid  down  in  the  ca.se  of  Orton  v. 
Butler,  5  B.  &  A.  652,  that  on  a  money  demand  merely  to  allege 
that  the  defendant  received  money  and  afterwards  converted  it 
to  his  own  use,  which  is  the  form  of  declaration  in  an  action  of 
trover,  the  action  cannot  be  maintained,  because,  they  say,  to 
allow  that  would  be  to  defeat  the  defendant's  right  to  set-off; 
and  that  the  action  of  trover  can  only  be  maintained  where  the 
specific  thing  for  which  suit  is  brought  can  be  identified,  and 
that  it  must  be  possible  in  such  case,  where  an  action  of  trover 
is  brought,  for  the  defendant  to  relieve  himself  from  all  liability 
by  tendering  the  property,  for  which  the  action  is  brought,  to 
the  plaintiff";  as,  for  instance,  when  it  is  brought  for  a  horse, 
he  may  surrender  the  horse  and  relieve  himself  from  liability. 
The  same  view  is  taken  in  several  cases  in  Croke's  Elizabeth; 


292  PARTIES  TO  ACTIONS.  [ClIAP.  II. 

and  there  are  cases— one  in  4  E.  D.  Smith,  N.  Y.  (Donohue  v. 
Henry,  162) — which  declare  that  when  a  sura  of  money  has  been 
received  which  belongs  to  the  plaintiff  in  the  suit,  and  concern- 
ing which  it  is  the  duty  of  the  defendant  to  turn  over  the  very 
sum  which  he  received  to  the  plaintiff,  the  very  money,  the 
same  dollars  and  the  same  bills,  if  he  received  it  in  that  form, 
that  then,  if  he  makes  any  other  disposition  of  it,  the  action  of 
trover  may  be  maintained.  Petit  v.  Bonju,  1  jMo.  64,  is  a  case 
in  which  the  plaintiff'  brought  an  action  in  that  form  against 
parties  who  were  conducting  a  lottery,  claiming  that  he  had 
become  entitled  to  a  sum  of  money  as  the  holder  of  a  ticket  in 
the  lottery,  and  that  they  had  wrongfully  refused  to  pay  it  over 
to  him,  and  seeking  in  trover  to  recover  the  amount.  The  court 
say,  in  that  instance,  that  if,  in  fact,  any  sum  of  money  had 
been  set  apart  to  the  plaintiff', — $100,  I  think,  was  the  amount, — 
if  it  had  been  parcelled  off  by  itself,  by  the  defendants,  as  his 
money,  and  afterwards  they  had  taken  tlmse  dollars  and  con-, 
verted  them  to  their  own  use,  he  might  bring  an  action  of  trover 
for  the  dollars  so  parcelled  off ;  but  that  he  could  not,  upon  the 
general  charge  that  so  much  money  was  duo  to  him,  and  wrong- 
fully detained  by  the  defendants,  maintain  that  action.  Ilis 
action  must,  in  that  case,  be  in  the  form  of  an  action  on  con- 
tract, if  he  would  recover  at  all. 

That  is  the  distinction  that,  I  think,  is  recognized  in  all  of  the 
cases,  and,  applying  it  to  the  present  case,  it  may  be  true  that 
the  defendants,  the  Bank  of  Leadville,  as  to  the  very  bills, 
notes,  or  coin,  if  it  was  such,  which  they  received  for  this  prop- 
erty, may  be  liable  in  an  action  of  trover,  or  an  action  founded 
in  tort  for  the  conversion  of  that  money,  if  it  be  so  alleged  in 
the  complaint.  And  if  that  money— the  very  same  money — 
was  paid  over  to  Spencer,  he  also  would  be  liable,  and  then  and 
in  that  case  they  both  might  be  joined  in  one  action  as  tort- 
feasors. To  illustrate,  I  will  read  a  paragraph  from  Bliss  on 
Code  Pleadings: 

"Under  the  Code,  an  action  for  the  recovery  of  personal^ 
property  will  lie  against  one  who  has  wrongfully  parted  with 
the  possession  of  property,  jointly  with  one  in  actual  posses- 
sion. '  ^     Section  83. 

And  the  same  principle  applies  to  trover: 

"Thus,  one  who  has  wrongfully  pledged  plate  belonging  to 
the  plaintiff  is  liable  to  an  action  of  detinue,  jointly  with  the 
person  to  vrhom  it  had  been  pledged.    So,  where  one  has  fraud- 


Sec.  3.  J  simmons  v.  spencei:.  293 

ulently  obtained  a  credit  upon  a  bill  of  goods,  and  assigned  them 
over  for  the  benefit  of  his  creditors,  the  vendor,  having  the 
right  to  repudiate  the  sale  and  pursue  the  goods,  may  make 
both  the  purchaser  and  his  assignee  parties  to  an  action  for 
their  possession. ' '    Id. 

For  this  the  case  of  Nichols  v.  Michael,  23  N.  Y.  264,  is  cited. 
The  principle  declared  is  that  where  a  party  has  the  right  to  a 
specific  thing,  and  he  can  pursue  that  particular  thing  through 
several  hands,  he  may  charge  all  of  these  parties  consecutively 
or  all  who  held  the  property  consecutively,  in  one  action,  for 
its  value.  So  that  here,  if  it  be  true  that  the  Smiths,  or  the 
persons  who  constitute  the  Merchants'  &  Mechanics'  Bank,  re- 
_ceiyed  this  money,  and  turned  over  the  same  money  to  Spencer, 
they  may  be  jointly  charL^d.  in  proper  phraspolo^rv,  as  for  con- 
verting that  money,  but  not  ctherwise.  jVnd  it  must  be  the 
identical  monev. 

These  cases,  and  all  the  authorities  that  I  have  been  abk  to 
find,  go  to  the  point  that  where  an  action  is  founded  in  tort, 
and  maintained  upon  that  principle,  it  must  be  for  the  conver- 
sion of  the  speciirc  thing,  and  it  can  only  be  maintained  where 
the  property  itself  can  be  traced  to  the  hands  of  the  party  to 
be  charged.  In  that  aspect,  if  the  facts  are  truly  stated  in  the 
first  and  second  of  these  counts,  no  joint  action  can  be  main- 
tained against  these  parties,  unless  the  pleader  may  be  able  to 
allege  that  the  same  money  came  to  the  defendants  the  Mer- 
chants' &  Mechanics'  Bank  of  Leadville,  and  the  defendant 
Spencer,  successively.  The  plaintiit'  must  allege  that  it  wasjthe  i  ^'s^  ^^' 
same  money,  and  that  tlie  defendants  converted  it  to  their  own  )  V*^-^ 
use,  in  order  to  make  it  an  action  for  tort. 

Upon  the  other  theory,  there  is  no  difficulty  in  maintaining  "^^^A.  <-•»»* 
an  action  against  either  of  the  defendants  separately  as  for  ^  j^^^  ^vvsy* 
money  had  and  received,  and,  upon  that  principle,  the  third  f  Xr-o-A  ^ 
count,  which  states  nothing  as  to  the  w^ay  in  which  the  money  ir 
came  to  the  hands  of  the  parties,  but  merely  charges  that  the  de- 
fendants are  liable  to  the  plaintiff  for  $13,000,  received  by  them 
for  the"  use  of  the  plaintiff,  is  not  open  to  any  objection. 

The  ruling  upon  the  demurrer,  therefore,  must  be,  that  it  is 
sustained  as  to  the  first  and  second  counts,  because  there  the 
facts  are  stated  which  show  that  the  defendants  cannot  be  joint- 
ly liable,  and  overruled  as  to  the  third  count,  because  nothing 
appears  in  that  count  to  indicate  that  they  may  not  be  jointly 
liable. 


294 


PARTIES  TO   ACTIONS. 


[Chap.  II. 


If  I  have  made  myself  understood,  it  will  be  apparent  that 
the  plaintiff  must  amend  so  as  to  make  this  substantially  an  ac- 
tion of  trover  for  this  sum  of  money  against  all  these  parties, 
or  by  dismissing  his  action  against  one  or  the  other  of  the  de- 
fendants. If  the  action  were  dismissed  as  to  Spencer,  or  as  to 
the  defendants  who  constitute  the  Merchants'  &  IMechanics' 
Bank  of  Leadville,  I  would  see  no  difficulty  in  maintaining  it 
against  the  other.  0_^  qV^xi-'v^/-  ^^  "^  -^-^  osvaa-^S: 


CARMAN  V.  PLASS. 

23  N.  r.,  286.     [1861.] 

Appeal  from  the  Supreme  Court.  The  action  was  commenced 
in  the  City  Court  of  Brooklyn,  where  the  plaintiff  complained 
against  the  defendant,  Plass,  as  the  lessee  for  years  of  certain 
premises,  claiming  to  recover  $116.66,  being  arrears  of  rent  due 
and  payable  March  1,  1859.  The  lease  was  averred  to  be  by 
indenture  between  the  plaintiff,  of  the  first  part,  the  defendant 
Plass,  of  the  second  part,  and  the  defendant  I\Iix,  of  the  third 
part,  executed  under  the  respective  hands  and  seals  of  the  par- 
ties, whereby  Plass  covenanted  to  pay  the  rent  required;  and 
it  was  alleged  that  the  defendant  Mix,  by  the  same  indenture, 
did,  "in  consideration  of  the  premises,  and  of  the  sum  of  one 
dollar,  guarantee  unto  the  plaintiff  the  pajTiient  of  the  afore- 
said rent  and  the  faithful  performance  of  the  covenants  in  the 
said  lease  contained."  The  complaint  further  set  forth  that 
Plass  had  made  default  in  the  payment  of  rent,  and  that  the 
plaintiff  had  notified  Mix,  thereof,  and  that  both  defendants  had 
failed  to  comply,  etc.  There  was  a  general  demand  of  judg- 
ment against  both  defendants. 

The  defendants  demurred,  on  the  ground  that  no  cause  of 
action  against  the  defendants  jointly  was  set  forth  in  the  com- 
plaint. 

The  city  court  gave  judgment  in  favor  of  the  defendants; 
but  it  was  reversed  on  appeal  at  the  general  term  of  the  supreme 
court,  and  judgment  was  rendered  in  favor  of  the  plaintiff. 
The  defendants  appealed  to  this  court. 

Denio,  J,  This  case  comes  precisely  within  the  language  of 
section  120  of  theCode"oI  ProcedureTwhich  provides  that^  ' '  per- 
sons_s^yefa]lv  liable  npon  the  same   oblip^ation   or  instrument. 


Sec.  3.]  carman  v.  plass.  295 

including  the  parties  to  bills  ofexchange  and  promissory  notes, 
may  all,  or  any  of  them,  be  included  in  the  same  action,  2X  the 
option ^£_the^plamtitL' '    Fsee'no  reason  to  doubt  that  it  is  like- 
wise within  the  meaning  and  intention  of  the  enactment.     It  re- 
lates  expressly  to  several  and  not  to  joint  liabilities.    The  latter 
did  not  require  the  aid  of  a  special  provision ;  for  a  plurality  of 
joint  contractors  always  could  be  and  generally  were  required 
to  be,  sued  together;  and  provision  was  made  in  the  act  con- 
cerning joint  debtors,  for  omitting  to  serve  process  on  all,  if  the 
creditor  should  so  elect.     But,  though  this  were  otherwise,  the 
provision  in  question,  relates,  in  terms,  to  cases  where  a  plurality 
of  persons  contract  several  obligations  in  the  same  instrument. 
That  was  the  case  here.    It  may  be  said  that  the  cause  of  action 
is  not,  in  this  case,  precisely  the  same  against  both  the  defend- 
ants.    The  lessee  engaged  to  pay  the  rent  unconditionally,  and 
the  surety  was  under  no  obligation  until  the  principal  had  made 
default.     But,  after  such  default,  each  of  them  was  liable  for 
the  same  precise  amount  absolutely.  They  were,  therefore,  within 
the  language  which  speaks  of  persons  severally  liable  upon  the 
same  instrument.    If  this  were  otherwise  doubtful,  the  reference 
to  suits  upon  bills  of  exchange  and  promissory  notes  makes  it 
entirely  certain  that  the  present  case  was  one  of  those  in  the  "^^^  ^-^^^^»-^  "^ 
contemplation  of  the  authors  of  the  section.    The  parties  to  such  -^^-^>-»-*~  '^ 
paper  are  included  in  the  provision.     The  indorsee  of  a  bill  or  o-'^-^^^^-<^  "-^ 
note,  and  the  drawer  of  an  accepted  bill,  are  only  liable  con-  ^^'^^-^^'^  ^^ 
tingently,  and  after  being  charged  upon  a  default  of  the  maker  "!V^'^'"\-»•''-^^ 
or  acceptor.    They  were  included  in  the  scope  of  the  enactment,  Y'^'^^'^-*"^'' 
because,  though,  in   a  general  sense,  parties  to  the  paper  on  ""*^"'^'~-  -^    ^ 
which  their  names  are  placed,  they  are  not  parties  to  the  obliga-"""'*"'*"''^  i  ^ 
tion,  or  instrument,  in  the  same  strict  sense  as  the  surety  in  the  ^|^^^^\-       ^ 
case  under  consideration.    No  doubt,  a  pretty  radical  innovation"^     *X»_.j^v*-» 
upon  the  common  law  system  of  pleading  was  made  when,  bv  tha  \    »    -v^.-.  /i 
act  of  1832   (p.  489,  §1),  the  several  obligations  of  parties  toj  A>J^e_>.    r» 
a^  bill  or  a  note  were  allowed  to  be  enforced  in  a  single  action^  x^o^  ^-/v>a^ 
But  this  had  become  familiar  law  when  the  code  was  written, 
and  it  seems  then  to  have  been  considered  that  the  principle   tk^^ 
might  be  usefully  extended  to  cases  like  the  present;  and  the 
section  referred  to  appears  to  me  to  have  been  framed  for  that  "V-—*^  >-'*'-* 
purpose.     I  am  not  able  to  entertain  any  doubt  respecting  the  Cf^^V7~^    ^ 
correctness  of  the  judgment  of  the  supreme  court.    In  the  cases   j!1Ji^CC[aZI 
from  11  Howard's  Practice  Reports,  218,  and  from  10  Barb.  638,    0&-^s^-^  *y 
to  which  we  have  been  referred,  the  separate  undertaking  of  the   ^  cV*-<ib'Wi 


296 


l-'AKTIES   T(J    ACTIONS.  [ClIAP.  11. 


8iu'ety  was  contained  in  a  different  instrument,  and  it  was  held 
that  he  could  not  be  joined  as  a  defendant  in  an  action  against 
the  principal.  It  was  assumed  by  the  court  that,  in  a  case  like 
the  present,  where  both  parties  were  bound  by  the  same  instru- 
raent,  the  statute  would  apply. 

I  am  in  favor  of  affirmnig  tlie  judgment  of  the  supreme  court. 

Comstock,  Ch.  J.,  and  Mason  J.,  dissented ;  all  the  other  judges 

concurring. 

Judgment  affirmed. 

MOWERY  V.  MAST. 
9  Neb.,  447.     [1880.] 

Maxwell,  C.  J.  On  the  fifteenth  day  of  April,  187G,  Alfred 
Calvert  executed  a  note  for  the  sum  of  $35  and  interest  to  P.  P. 
Mast  &  Co.,  due  and  payable  at  the  Adams  County  Bank  on  the 
first  day  of  November,  1877.  Before  the  delivery  of  the  note  to 
P.  P.  Mast  &  Co.,  the  following  guaranty  was  written  on  the 
back  of  the  note  by  Mowery,  their  agent:  "For  value  received 
we  hereby  guaranty  the  payment  of  the  within  note,  and  waive 
protest,  demand  and  notice  of  non-payment  thereof.  G.  W. 
Mowery. ' ' 

On  the  seventh  day  of  January,  1879,  an  action  was  com- 
menced against  Calvert  and  :\Iowery  before  a  justice  of  the  peace, 
upon  the  note  in  question,  and  judgment  rendered  against  them 
jointly  for  the  sum  of  $44.62  and  costs.  :\Iowery  appealed  to 
the  district  court.  x\  petition  being  filed  in  the  district  court 
praying  for  a  joint  judgment  against  Calvert  and  Mowery  a 
demurrer  was  interposed  by  Mowery  on  the  ground  of  a  mis- 
joinder of  causes  of  action.  The  demurrer  w^as  overruled,  and 
judgment  rendered  against  him  jointly  with  Calvert.  He  brings 
the  cause  into  this  court  by  petition  in  error. 

The  only  question  at  issue  is  the  right  of  the  holder  of  a  note 
to  bring  a  joint  action  against  the  maker  and  guarantor  of  a 
note.  Section  44  of  the  Code  of  Civil  Procedure  provides  that 
"persons  severally  liable  upon  the  same  obligation  or  instrument, 
including  the  parties  to  bills  of  exchange  and  promissory  notes, 
may  all  or  any  of  them  be  included  in  the  same  action  at  the  op- 
tion of  the  plaintifie."  This  is  a  literal  copy  of  section  120  of 
the  Code  of  New  York,  as  it  existed  prior  to  1876,  and  has  been 


Sec.  3.] 


MOWERY   V.    MAST. 


297 


copied  in  Ohio,  Florida,  ^Minnesota,  Oregon,  Colorado,  Nortii 
Carolina,  South  Carolina  and  Wisconsin.  Bliss  on  Code  Plead- 
ings, section  94.  In  Kansas  the  words  ' '  and  indorsers  and  guar- 
antors" follow  the  words  "promissory  notes."  Section  2550  of 
the  Code  of  Iowa  of  1873  provides  that  "when  two  or  more  per- 
sons are  bound  by  contract  or  by  judgment,  decree  or  statute, 
whether  jointly  only,  or  jointly  and  severally,  or  severally  only, 
and  including  the  parties  to  negotiable  paper,  common  orders  and 
checks  and  sureties  on  the  same,  and  separate  instruments,  or  by 
any  liability  growing  out  of  the  same,  the  action  thereon  may  be 
brought  at  the  plaintiff's  option  against  any  or  all  of  them." 
Under  these  provisions  it  is  held  that  the  guarantor,  when  the  / 
guaranty  is  on  the  same  paper  with  the  original  instrument,  may| 
be  joined  as  defendant  with  maker.  Peddicord  v.  Whitman,  9 
Iowa,  471;  Marvin  v.  Adamson,  11  Iowa,  371;  Tucker  v.  Shiner, 
24  Iowa,  33 ;  Stout  v.  Noteman,  30  Iowa,  -114 ;  Mi\  v.  Fairchild,  12 
Iowa,  351. 

In  Gale  v.  Van  Armau,  18  Ohio,  36,  before  the  adoption  of  the 
Code,  the  supreme  court  held  that  "where  a  stranger  to  a  note 
payable  in  checks,  at  the  time  of  the  execution,  wrote  on  the  Ijack 
and   signed   these   words,   'I   guarantee  the  fulfillment   of  the 
within  contract,'  it  was  a  joint  contract,  and  that  the  parties 
might  be  sued  jointly  upon  it,"  citing  Leonard  v.  Sweetzcr,  16 
Ohio,  1;  Stage  v.  Olds,  12  Ohio,  158;  Bright  v.  Carpenter  & 
Schuer,  9  Ohio,  139.     The  decision  is  placed  upon  the  ground 
that  the  instruments  were  executed  by  principal  and  surety  at 
the  same  time,  upon  the  same  consideration,  for  the  same  pur- 
pose, and  took  effect  from  the  same  delivery.     The  dissenting 
opinion  of  Hitchcock,  C.  J.,  seems  to  draw  the  proper  distinction 
between  a  guarantor  and  surety,  which  seems  to  have  been  over- 
looked by  a  majority  of  the  court.    Where  the  guaranty  is  inade 
at  the  sa,me  time  with  the  principal  contract,  and  becomes  an 
essential  ground  of  credit,  there  is  no  doubt  the  consideration 
extends  to  the  contract  of  guaranty.    Butj_contracrorgiiarant^ 
is  not  a  primary  obligation  to  pay,  but  is  an  undertaking  that 
the  debtor  will  pay.     The  contrael  of  thejnakcr  and  sureties 
upon  a  promissory  note  is  to  pay  the  same.    Tli£_i?uaraatnr  i.^not 
a  promissor  with  the  maker.    How,  then,  can  he  be  sued  with  the 
maker  of  a  promissory  note  upon  an  obligation  to  which  he  is    g^^.^,^-.^,^ 
not  a  party?    The  contract  of  guaranty  is  a  sep_aratejnd  ^°^^' ^^  T^^^^^Ti^ 
pendent  contract,  and  theljability  QFT^^^^rantoinTgoyernedS        "^^^^ 
by  the  express  terms  ot  the  contract.     He  cannot  bejoinedja." j  V'^^^  "^  ^ 


298  PARTIES  TO  ACTIONS,  [ClIAP.  II. 

an  action  against  the  maker  of  aiiote^  he  not  being  liable  as 
^gerr~PEa^~v.  Dinger,  4  E.  D!  Sinith,  37T;  Midclecl  v.  ydiu- 
man,  10  Barb.  633 ;  Tibbets  v.  Percy,  24  Barb.  39 ;  Allen  v.  Fos- 
gate,  11  How.  Pr.  218;  Borden  v.  Gilbert,  13  Wis.  670;  Virden  v. 
Ellsworth,  15  Ind.  144;  Bondwart  v.  Bladden,  19  Ind.  IGO.  It 
follows  that  the  judgment  of  the  district  court  must  be  reversed 
and  the  cause  remanded  for  further  proceedings. 

Reversed  and  remanded* 


V^- 


X  VOORIIIS  V.  GUILDS. 

17  N.  Y.,  35i.     \1858.] 

Appeal  from  the  Supreme  Gourt.  The  plaintiffs  brought  their 
action  against  the  surviving  members  of  the  firm  of  Baxter, 
Brady,  Lent  &  Go.,  and  against  the  respondent  as  surviving 
executor  of  Ileman  W.  Ghilds,  a  deceased  member  of  said  firm. 
The  complaint  alleged  the  making  of  a  promissory  note  by  the 
partnership  in  the  lifetime  of  Ileman  W.  Ghilds;  its  maturing 
and  non-payment ;  the  subsecjuent  death  of  Ghilds ;  the  granting 
of  letters  testamentary  to  the  respondent  as  his  executor,  etc. 
It  did  not  aver  any  previous  suit  against  the  surviving  partners, 
or  their  insolvency.  The  respondent,  Ghild's  executor,  demurred 
on  the  ground  that  the  complaint  did  not  state  a  cause  of  action 
against  him.  He  had  judgment  for  the  dismissal  of  the  com- 
plaint as  against  him,  which  having  on  appeal  been  affirmed,  by 
the  supreme  court  at  general  term  in  the  seventh  district,  the 
plaintiffs  appealed  to  this  court. 

Selden,  J.  Prior  to  the  enactment  of  the  code  of  procedure 
there  was  a  conflict  of  opinion  between  the  courts  of  this  state 


and  those  of  England,  as  to  the  remedy  allowed  to  the  creditors 
of  a  partnership  against  the  representatives  of  a  deceased  part- 
ner. It  was  conceded  bv  both  that  only  the  surviving  partners 
could  be  sued  at  law,  burit  was  held  by  the  English  courts  that 
the  representatives  of  the  deceased  partner  mighrbe  immediately 
proceeded  against  in  equity  and  compelled  to  pay  the  entire 
debts  of  the  firm,  without  any  previous  resort  to  the  surviving 
Sgig^^ys  j)r  any  evidence  that  such  debts  could  not  be  collected 
from  them ;  while  on  the  other  han^S^ur  courts  held  either  that 

♦Accord:     Graham  v.  Ringo,  67  Mo.  324. 


Sec.  3.]  voorhis  v.  childs.  299 

the  remedy  against  tlie  survivors  raustfirst  be  exhausted  or  it 
piust  appear  that  they  were  insolvent  and  unable  to, paj. 

Prior  to  the  case  of  Devaynes  v.  Noble,  Mer.  397,  the  decisions 
of  the  court  of  chancery  of  England  appear  to  have  been,  for  a 
considerable  time  at  least,  in  accordance  with  those  in  this  state. 
The  precise  ground  of  the  change  seems  to  have  been  this :  In 
the  earlier  cases  it  had  Ijeen  a.ssumed  that  the  liability  in  equity 
of  the  estate  of  the  deceased  partner  was  produced  by  a  sort  of 
equitable  transfer  to  the  creditor  of  the  right  of  the  surviving 
partners  to  insist  that  the  estate  of  their  deceased  associate  should 
contribute  to  the  payment  of  the  debts  of  the  firm ;  but  upon  its 
being  afterwards  held  that  the  obligations  of  partners  were  to 
be  regarded  as  joint  and  several,  the  English  courts  said  that  in 
all  cases  of  that  kind  creditors  had  a  right  to  pursue  their  rem- 
edies against  all  or  either  of  their  debtors.  They  therefore  held 
that  they  might  proceed  immediately  in  equity  against  the  rep- 
resentatives of  a  deceased  partner,  without  resorting  to  their 
legal  remedies  against  the  survivors.  The  courts  in  this  state, 
however,  refused,  for  what  appear  to  be  substantial  reasons,  to 
adopt  the  change.  Its  effect  was,  to  apply  to  a  proceding  in 
equity,  the  strict  legal  rules  applicable  to  suits  at  law.  It  ob- 
viously overlooked  many  equitable  considerations  of  great  force. 
The  surviving  partners  succeed  primarily  to  all  the  rights  and 
interests  of  the  partnership.  They  have  the  entire  control  of 
the  partnership  property,  and  the  sole  right  to  collect  the  part- 
nership dues.  The  assets  of  the  firm  are  of  course  to  be  regarded  ^  -  .  v^ 
as  the  primary  fund  for  the  payment  of  the  partnership  debts,  ^^'-'V^^^^^ 
and  it  would  seem  equitable  at  least,  that  the  parties  having  the  <*-*'-^>^'^-^-'"^ 
exclusive  posession  of  this  fund  should  be  ^rst  callecTupon.  The 
answer  given  to  this  by  the  English  courts,  that  the  representa- 
tives of  the  deceased  partner  have  their  remedy  over,  seems 
hardly  satisfactory.  The  presumption  is,  that  the  primary  fund 
is  sufficient  to  meet  the  demands  upon  it.  Why  then,  permit  in 
equity  a  resort  to  another  fund,  and  thus  give  rise  to  a  second 
action  for  its  reimbursement.  Beside&r^hese  English  decisions 
permitting  the  creditor  to  proceed  in  the  first  instance  in  equity 
against  the  estate  of  the  deceased  partner,  are  in  conflict  with 
the  established  doctrine  that  parties  must  first  exhaust  their 
legal  remedies  before  resorting"Wl!OTTrts-frf-equity. 

But  whether  these  considerations  are  sufficient  to  justify  the 
positions  assumed  by  our  courts  or  not,  it  may  be  regarded  as 
having  been  settled  in  this  state,  prior  to  the  code,  that  the 


^00  PARTIES   TO    ACTIONS.  [ClIAP.  II. 

creditors  in  such  a  case,  could  not  c.omp  into  a  court  ofj^f|nity 
without  showing,  either  that  the  surviving  partners  had  been 
proceeded  against  to  execution  at  law,  or  that  they  were  in- 
solvent. (Grant  v.  Shurter,  I  Wend.  148;  Ilamersley  v.  Lam- 
bert, 2  John.  Ch.  608;  Leake  &  Watts  Orphan  House  v.  Law- 
rence, ]1  Paige  80;  2  Denio  577;  S.  C.)  In  the  last  of  these 
cases,  the  English  cases  referred  to  were  cited  and  distinctly 
overruled.  There  are  many  American  cases,  both  in  the  State 
and  the  United  States'  courts  supporting  and  confirming  the 
doctrine  of  the  courts  of  this  state  upon  the  subject.  (Pendle- 
ton V.  Phelps,  4  Day,  481 ;  Remsdy  v.  Kane,  1  Gallis.,  385;  Sturges 
V.  Beach,  1  Conn.,  509 ;  Alsop  v.  Mather,  8  Conn.,  584 ;  Caldwell 
v.  Stileman,  1  Rawle,  212;  Rubbell  v.  Perrin,  3  Ham.  Ohio,  287.) 

The  complaint  in  this  case  is  in  the  form  of  an  ordinary  action 
at  law  upon  a  promissory  note  against  all  of  the  surviving  part- 
ners, together  with  the  executors  of  the  deceased  partner;  and 
contains  no  averment  that  any  proceedings  have  ever  been  had 
against  any  or  either  of  the  surviving  partners,  or  that  they  are 
without  the  means  of  payment.  From  what  has  been  already 
said,  it  is  plain  that  formerly  no  such  action  could  have  been 
maintained.  The  question  presented  is,  how  far  the  code  has 
changed  the  law  in  this  respect.  It  cannot  be  claimed  that  it  has 
altered  the  principles  which  govern  the  responsibilities  of  the 
representatives  of  a  deceased  partner  for  the  partnership  debts, 
or  the  order  of  liability  as  between  them  and  the  surviving  part- 
ners. It  contains  not  a  word  indicative  of  such  intent.  The 
la^r,  therefore,  are  still  primarily  liable  for  the  debts ;  and  the 
estate  of  the  deceased  partner  can  only  be  resorted  to  in  case  of 
the  inability  of  the  survivors  to  meet  them.  Hence  it  is  plain  that 
this  action  cannot  be  sustained  as  a  suit  in  equity,  founded  upon 
the  ultimate  liability  of  the  representatives  of  Childs;  because 
it  has  been  shown,  that  m  such  an  action  it  is  indispensable  to 
aver,  either  that  the  survivors  have  been  prosecuted  to  execution 
at  law,  or  that  they  are  without  the  means  of  payment. 

What  I  understand  the  plaintiff's  counsel  to  claim  is,  that 
considering  the  suit  as  founded  upon  the  legal  liability  of  the 
surviving  partners,  the  plaintiffs  were  warranted  in  making  the 
executors  parties,  by  section  118  of  the  code,  which  provides 
that,  "any  person  may  be  made  a  defendant  who  has  or  claims 
an  interest  in  the  controversy  adverse  to  the  plaintiff ;  or  who  is 
a  necessary  party  to  a  complete  determination  or  settlement  of 
the  questions  involved  therein."     This  section  is  in  terms,  a 


Sec,  3.j  voorhis  v.  childs.  301 

mere  statutory  enactment  of  the  rule  as  to  parties  which  has 
always  prevailed  in  couris  of  equity;  but  as  it  is  not  expressly 
limited  to  cases  of  that  character,  it  has  ben  contended,  not  only 
in  this  case  but  in  others,  that  it  is  applicable  to  all  legal  as  well 
as  equitable  actions. 

The  difference  in  the  rule  as  to  parties  between  courts  of  law^  "^>^-^\^x^^^*~^ 
and  of  equity  was  not  accidental,  but  had  an  obvious  foundation  Ti^  ■  ^^~'~*^ 
in  reason.     Where  all  persons  having  an  interest  in  the  con-j   >r  ^*-«r-^^^^-^ 
troversy  are  made  parties,  cases  are  frequently  rendered  exceed-  \Lrv>x^-«-ANA>^ 
ingly  complex.    Judges  can  command  the  time  and  patience,  andl  c^-*-'^*^^  *^ 
may  be  safely  endowed  with  the  discretion  required  to  disen-.  ^>-^  ^   V-'^ 
tangle  their  intracacies  and  dispose  of  their  varied  equities.    But' 
it  is  extremely  inconvenient,  if  not  impossible,  to  try  such  cases 
by  a  jury.     They  are  qualilied  to  deal  with  simple  issues  only; 
and  the  rules  of  the  common  law  as  to  parties,  as  well  as  those 
which  prevailed  in  the  formation  of  issues,  were  adapted  to  the 
nature  of  the  tribunal  before  which  the  cases  were  to  be  tried. 
The  attempt  to  apply  the  equitable  rule  as  to  parties,  to  all  legal 
actions,  would  lead  to  infinite  embarrassment  in  the  trial  of  jury 
cases.     If,  however,  the  legislature  had  power  to  prescribe  such 
a  change,  and  has  done  so,  the  courts  have  no  discretion  in  the 
matter,  but  are  bound  to  execute  the  legislative  will. 

It  is  supposed  by  some  that  it  was  intended  to  abolish  by  the 
code  all  distinction,  not  only  in  forms  but  substance,  between 
legal  and  equitable  actions;  and  it  must  be  conceded  that  many 
of  its  pVovisious  taken  by  themselves  might  seem  to  indicate  such 
an  intent;  and  yet  nothing  can  be  clearer  than  that  the  legis- 
lature has  wholly  failed  to  carry  into  effect  such  an  intention  if 
it  existed.    On  the  contrary,  the  code  expressly  retains  the  prin.— ^A^^  ^^^  j^j; 
cipal  differences  which  distinguished  the  two  classes  of  ^^^jiogg:^^;^  -  .jk,-,  -  .(. 
Actions ^t  law  were  to  be  tried  by  a  jury;  suits  in  equity  by  the  5i^3r>oo-*ju«^ 
court.     This  distinction  remains  undisturbedfe>In  legal  actions,  Qj^^,^j;^c,  q^ 
with  few  exceptions,   compensation  in   damages  was  the  only        \^^ 
mode  of_redress;  while  in  such  as  were  equitable  the  relief  was 
such  as  was  adapted  to  the  exigencies  of  the  case._    The  code 
makes  no  change  in  this  raspects3/Iuone  of  these  classes  of 
action  costs  were  recoverable  by  the  successful  party  as  a  matter 
of  course ;  in  the  other,  they  rested  in  the  discretion  of  the  court. 
This  remains  as  before. 

Now  it  is  plain,  that  if  we  should  make  the  code  a  consistent 
system,  one  that  can  be  practically  administered,  we  must  con- 
strue it,  not  in  view  of  the  general  proposition,  obviously  untrue, 


302  PARTIES  TO   ACTIONS.  [ClIAP.  II. 

that  the  distinctions  between  actions  at  hiw  and  suits  in  eciuity 
are  abolished,  but  in  the  light  afforded  by  a  comparison  of  its 
various  provisions.  Take,  then,  the  case  in  hand.  Is  it  reason- 
able, in  view  of  the  important  distinctions  thus  made,  by  the 
code  itself  between  legal  and  equitable  actions,  to  hold  that  it 
was  intended  that  section  118  should  apply  to  both  these  classes? 
Let  us  look  at  some  of  the  difficulties  to  which  this  would  lead. 
The  mode  of  trial  depends  upon  the  nature  of  the  action.  Those 
which  merely  seek  to  recover  a  sum  of  money  are  to  be  tried  by 
a  jury.  The  legislature  was  forced  to  adopt  this  provision  by 
the  constitution,  which  preserves  trial  by  jury  in  all  cases  where 
it  had  theretofore  existed. 

If,  however,  the  action  involves  anything  whatever  besides  the 
recovery  of  money,  unless  it  be  for  the  recovery  of  specific,  real 
or  personal  property,  or  to  obtain  a  divorce,  if  it  seeks  the  least 
modification  of  the  judgment  in  respect  to  any  of  the  parties, 
it  then  becomes  triable  by  the  court.  The  language  of  the  code 
is,  that  "an  issue  of  fact  in  an  action  for  the  recovery  of  money 
only  *  *  *  must  be. tried  by  a  jury."  It  is  easy  to  see, 
therefore,  that  if  section  118  is  to  receive  the  construction  eon- 
tended  for,  most  actions  for  the  recovery  of  money,  as  well  as 
actions  for  the  recovery  of  specific  real  or  personal  property  by 
bringing  in  parties  having  some  equitable  interest,  real  or  sup- 
posed, in  the  controversy,  may  be  readily  converted  into  ac- 
tions to  be  tried  by  the  court  instead  of  a  jury.  Has  the  legis- 
lature power  thus  to  subvert,  or  enable  parties  to  evade",  an  im- 
portant constitutional  provision?  If  there  is  any  one  clause  of 
the  constitution  which  the  courts  are  under  greater  obligation  to 
protect  from  all  encroachment  than  others,  it  is  that  which  pre- 
serves trial  by  jury;  and  it  is  clearly  impossible  for  them,  in 
view  of  their  duty  in  this  respect,  so  to  construe  the  provisions 
of  the  code  as  to  render  all  actions,  legal  as  well  as  equitable, 
,  triable  by  the  courts  at  the  option  of  the  plaintiff. 

But  there  are  other  embarrassments  in  the  way  of  the  con- 
struction of  section  118,  for  which  the  plaintiff  contends,  growing 
out  of  the  provisions  of  the  code  in  respect  to  costs.  It  will  be 
found  difficult  if  not  impossible  to  reconcile  that  construction 
with  those  sections  which  give  costs  of  course  to  the  successful 
party  in  all  actions  for  the  recovery  of  money  or  of  specific  real  or 
personal  property.  In  actions  of  ejectment  especially,  where  so 
many  collateral  and  subordinate  equities  frequently  exist,  the 
task  of  harmonizing  the  equity  rule  as  to  parties  with  the  com- 


Sec.  3.]  voorhis  v.  childs.  303 

mon  law  rules  as  to  costs  and  as  to  the  mode  of  trial,  would  be 
attended  with  serious  embarrassment. 

Taking  the  code  then,  as  a  whole,  and  comparing  its  various 
provisions  with  each  other,  it  seems  evident  that  the  legislature 
neverintended  section  118,  to  receive  a  construction  which 
would  authorize  a  suit  like  the  present.  Although  all  the  diffi- 
culties which  have  been  suggested,  might  not  arise  in  this  case, 
yet  the  section  in  question  can  only  receive  one  of  two  inter- 
pretations. It  must  either  be  confined  strictly  to  actions  of  an 
equitable  nature,  to  which  alone  it  seems  appropriate,  or  it  must 
extend  to  actions  of  every  kind,  whether  legal  or  equitable ;  and 
I  have  no  hesitation  in  holding,  for  the  reasons  suggested,  that  c^^^^  \ » ?  ^> 
it  should  be  regarded  as  a  mere  statutory  adoption  of  the  equit-  ^^^^^j^^^^,^^.,,^  :^^ 
able  rule  on  the  subject  of  parties,  and  was  intended  to  have  ^^  ^ 

substantially  the  same  application.    The  language  of  the  section    Vi         \i-"Aa^ 
itself  points  to  this  interpretation.     It  authorizes  the  bringing^^^^^^^^T^ 
of  all  those  who  are  Jiccessary  parties  "to  a  complete  determina-  ' 

tion  or  settlement  of  the  questions  involved."  This  language  is^^^y^^^  "»^ 
inappropriate  to  actions  for  the  recovery  of  money  only,  or  of  a.«Yr'os5I*ii>iii 
specific  real  or  personal  property ;  but  embraces  the  very  gist  of 
the  rule  which  has  always  prevailed  in  equitable  actions. 

It  is  worthy  of  remark  that  the  construction  here  contended 
for,  is  that  which  has  been  of  necessity  to  a  very  great  extent 
practically  put  upon  the  various  provisions  of  the  code.  Cases 
are  found  so  naturally  to  arrange  themselves  according  to  the 
classification  which  existed  prior  to  the  code,  that  jhe  distinc- 
tion  betweeiLiej^  and  equitable  actions,  is  nearlyas  marked 
liipon  ail  the  papers  presented  to  the  courts  as  formerly.  The 
same  names  are  not  used,  but  the  nature  of  the  cases  has  not 
changed,  nor  have  the  distinctions  been  abrogated.  Very  few  at- 
tempts have  been  made  to  carry  into  practical  effect  the  idea  of 
blending  legal  and  equitable  causes  of  action  in  one  common  pro- 
ceeding. Were  it  necessary  to  the  decision  of  this  case,  I  should 
be  prepared  to  hold,  that  that  clause  of  the  constitution  which 
provides,  that  "there  shall  be  a  supreme  court  having  general 
jurisdiction  in  law  and  equity,"  presents  an  insuperable  barrier 
to  any  legislative  merger  of  the  two  jurisdictions.  While  the 
legislature  may,  as  it  has  done,  abolish  the  distinctions  which 
existed  in  mere  matters  of  form,  yet  it  is  easy  to  show  that  to 
blend  the  two  in  respect  to  matters  of  substance  and  principle, 
would  be  virtually  to  subvert  the  jurisdiction  of  the  court  in  re- 
gard to  the  one  or  the  other;  which  the  legislature  clearly  has 


304  PAKTIES   TO    ACTIONS.  [CmVP.  II. 

not  the  power  to  do.  But  I  will  not  pursue  this  topic  further, 
as  the  conclusion  to  which  1  have  arrived  seeuLs  to  me  fully  war- 
ranted by  the  previous  reasoning. 

As  therefore  the  present  action  must  be  regarded  as^one  of_ 
a  purely  legal  nature,  brought  against  the  surviving  partners, 
upon  thelr'legal  liability,  it  follows,  that  the  executors  of  the 
deceased  partner,  who  is  liabl^only  in  equity,  were  improperly 
r''='"^**^"^i  made  j^arties.  Had  the~defendants  united  in  a  demurrer  upon 
>-<jL  *^  *H-  the  ground  that  several  causes  of  action  were  improperly  joined, 
they  might  all  perhaps  have  been  entitled  to  judgment.  But 
the  demurrer  is  actually  put  in  by  the  executors  alone,  and 
rests  upon  the  narrower  ground  that  the  complaint  does  not 
state  facts  enough  to  constitute  a  cause  of  action  against  them. 

If  we  are  right  in  our  reasoning,  the  complaint  is  clearly  de- 
fective in  this  respect,  and  the  judgment  of  the  supreme  court 
should  therefore  be  affirmed. 

Pratt  and  Strong,  Js,,  concurred  in  this  opinion,  and  Denio 
J.,  in  the  construction  therein  put  on  No.  118  of  the  code.  All 
the  other  judges  concurred  in  the  result,  upon  the  ground  that 
the  complaint  made  no  cause  of  action  against  the  respondent, 
reserving  the  question  whether  the  insolvency  of  the  surviving 
partners,  or  of  the  partnership  estate,  would  justify  a  joint  ac- 
tion against  the  survivors  and  representatives  of  the  deceased 

partner. 

Judgment  affirmed. 

FISHER  V.  CHADWICK. 

.      4  Wijo.,  379.      [1893.] 

CoNAWAY,  J.  These  two  cases  in  error  in  this  court  arise  from 
a  single  action  in  the  district  court.  Edwin  W.  Hopkins  brought 
this  action  in  that  court  against  Charles  F.  Fisher,  and  John  M. 
Chadwick  and  Charles  F.  Fisher,  administrators  of  the  estate 
of  Jehu  J.  Chadwick,  deceased.    He  obtained  judgment  against 

*In  Missouri  the  substantive  law  has  been  changed  by  the  follow- 
ing statute: 

Revised  Statute  Missouri  (1899).  Section  890.  Joint  debt  shall 
survive,  against  whom.  In  case  of  the  death  of  one  or  more  of  the 
joint  obligors  or  promissors,  the  joint  debt  or  contract  shall  and  may 
survive  against  th?  heirs,  executors  and  administrators  of  the  deceased 
obligor  or  promisor,  as  well  as  against  the  survivors. 


gEc.  3.]  FISHER  V.   CH.U)WICK.  305 

them  Charles  F.  Fisher  brinirs  the  cause  to  this  court  for  re- 
view bv  his  individual  petition  in  error.  John  M.  Chadwick  and 
Charles  F.  Fisher,  administrators  of  the  estate  of  Jehu  J.  Chad- 
wick, deceased,  also  bring  the  cause  to  this  court  for  review  by 
their  separate  petition  in  error. 

The  petition  of  plaintiff,  Hopkins,  filed  in  the  trial  court,  al- 
leges a  joint  and  several  contract  of  Charles  F.  Fisher  and  Jehu 
J  Chadwick  with  himself.  Before  the  commencement  of  this 
action  Jehu  J.  Chadwick  died,  and  the  action  is  against  his  ad- 
ministrators and  Charles  F.  Fisher  as  joint  defendants.  The 
administrators  of  the  estate  of  Jehu  J.  Chadwick,  deceased  de- 
mtirred  to  this  i>etition  on  the  ground  that  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action  against  them,  m  not  al- 
k..nng  the  insolvency  of  Charles  F.  Fisher,  the  surviving  joint 
contractor,  and  that  there  is  an  improper  joinder  of  causes  ot 
action  against  Charles  F.  Fisher,  individually,  and  against  these 

administrators.  ,.  .1      i 

At  common  law,  the  rule  was  absolute  that  the  estate  ot  the  de- 
cc^^^idldM^i^ractor  was  not  liable  to  the  obligee  in  the  joint 
::;;^t  except  in  the  case  oHl^^msplw.ncj  of  tluT surviving 
l^int  obli-or     if  the  survivor  was  solvent  there  was  a  plain  and 
Adequate 'rmedy  by  action  at  law  against  him.    In  such  case  the 
liability  of  the  estate  of  the  deceased  joint  obligor  was  to  con- 
tribute  to  him  after  the  debt  was  collected  from  or  paid  by  him 
In  case  of  his  insolvency  the  obligee  in  the  joint  contract  could 
brin-  his  action  in  equity  against  the  administrators  of  the  de- 
ceased joint  obligor.    BuLthejsetition  alleges  a  joint  and  several 
.nntrn.t     It  is  iiot  claimed  that_tliese_ni1os  apply,  or  ever  ap-. 
plied,  to  such  a  contract    But  the  same  point  is  raised  by  an 
insI^^i^tb^l^nh^TI^equested  by  the  defendant  administra- 
tors, and  refused  by  the  trial  court.     This  instruction  is  as  fol-    ^^^^^_^ 
lows-    "The  plaintiff  cannot  recover  against  the  admmistrators  ^^_^  ^^ 
of  Jehu  J.  Chadwick,  deceased,  in  this  action,  upon  a  jomt  agree-  y^^_^  ft^ 
ment  or  contract  jointly  made  by  Charles  F.  FLsher  and  Jehu  \  y^^ 
J    Chadwick."    Ther^j^jvidencejnjhe  record  from  which^j  ^-^  ^ 
iury  might  have  found  jhat  the  contracUn  question  was  joint,    _ 
and^^n^i^T^ndl^iiras  alleged,  ^^dlhere  is  no  allegation 
-n^7-;;^tiSr^rtl^  of  the  survivor.     Therefore,  if 

the  common  law  rule  prevails,  the  instruction  should  have  been 
given,  and  the  refusal  to  give  it  was  error,  which  might  have 
teen  very  prejudicial.  The  question  is  thus  fairly  presented 
whether    under  our  code,  the  common  law  rule  prevails,-that 


20 


306  PARTIES  TO   ACTIONS.  [CHAI'.  11. 

the  administrators  or  executors  of  a  deceased  co-oblijior  in  a 
joint  contract  are  liable  to  the  obligee  in  an  action  on  the  con- 
tract only  in  case  of  the  insolvency  of  the  survivor.  This  is  a 
question  upon  which  our  American  courts  are  in  direct  and  hope- 
less conflict.  It  is  a  question  of  first  impression  in  this  state,  and 
it  is  our  duty  to  endeavor  to  ascertain  and  adopt  the  view  which 
is  most  in  harmony  with  the  i)rovisions  of  our  Code  of  Civil 
Procedure,  and  best  adapted  to  carry  out  these  provisions  in 
their  true  meaning  and  intent. 

The  one  sufficient  reason  for  the  rule  of  the  comrgon  law  that 
the  surviving  joint  obligor  and  the  representatives  of  the  estate 
^^'^-•^^^^^^^  of  the  deceased  could  not  be  joined  as  defendants  in  an  action 
"^  ^^^^^^jj^at  law  was  the  inability  of  a  court  of  law  to  render  separate  and 
different  judgments  in  a  single  action^ — against  the  survivor,  to 
be  satisfied  de  bonis  propriis,  and  against  the  administrator  of 
the  estate  of  the  deceased,  to  be  satisfied  from  such  estate  in  due 
course  of  administration.    From  the  same  reason  it  followed  that 
the  survivor  alone  was  liable  in  an  action  at  law,  and  that  if  he 
were  solvent,  and  the  action  thus  available  for  the  collection  of 
the  debt,  the  plaintiff  need  go  no  further,  and  he  was  not  per- 
mitted to  do  so.     In  the  code  states,  this,  the  only  reason  for  the 
rules  of  the  common   law   upon  this  subject,  has  entirely  dis- 
■-  '^»~'^^^  *\,     appeared..   There  is  no  longer  any  objection  to  joining  causes  of 
,,j^^^^  ^^^_  action  which  were  formerly  distinguished  a.s  legal  and  equitable. 
;jc_  ^  -^i^j^     Our  courts  are  no  longer  hampered  as  to  the  form  of  the  judg- 
>^«>^  K^irv  «**3-    ments  they  may  render  in  one  single  form  of  action,  called  a 
a  v_A-o  "civil  action."    But  sometimes  a  rule  of  law  survives  after  the 

'^^^"^'^  reason  for  it  is  gone.     This  may  be  the  case  where  the  reason 

for  the  rule  has  been  abolished  by  legislation,  unless  concurrent 
legislation  also  furnish  a  new  rule.  With  all  due  respect  for  the 
opinions  of  some  eminent  courts  which  seem  to  hold  differently, 
we  are  of  the  opinion  that  codes  such  as  ours,  doing  away  with 
the  reason  of  the  common  law  rule  under  consideration,  as  to, 
joinder  of  parties  defendant,  also  furnish,  in  terms  sufficiently 
clear,  a  new  rule  to  be  followed  in  its  stead,^  As  to  parties  de- 
^  fendant,  we  have  the  following  broad  proposition :  ' '  Any  person  i 
may  be  made  a  defendant  who  has  or  claims  an  interest  in  the 
controversy  adverse  to  the  plaintiff,  or  who  is  a  necessary  party 
to  a  complete  determination  or  settlement  of  the  question  in-| 
volved  therein."   Rev.  Sts.  §2395. 

The  defendants  in  the  case  at  bar  all  deny  any  liability  on 
their  part  to  the  plaintiff  in  the  action.     The  primary  question 


JVv^~<-<  "VX^j. 


Sec.  3.]  fisher  v.  chadwick.  307 

to  be  determined  is  whether  they  are  so  liable.     If  it  be  de- 
termined that  they  are  liable,  the  next  question  is  the  amount  of 
such  liability.     In  both  these  questions,  the  defendant  admin- 
istrators are  interested  in  their  representative  capacity  precisely 
toThe  same  extent  as  their  decedent  would  be  intf^rpsted,  were  be  !!^Cl^J^-,,;3j;i 
alive.     It  is  just  as  necessary  for  them  to  defend  for  the  estate   •-,  ..o-oxaJiA. 
as  it  would  be  for  him  to  defend  for  himself.  If  the  action  were  (5jo«->-^>>-3C 
against  the  survivor  alone,  tbey  would  still  be  interested.    It  does   w^-»-**-~' 
not  change  the  extent  of  their  liability,  whether  they  are  held 
to  pay  the  obligee  in  the  joint  contract,  or  to  the  surviving 
obligor,  by  way  of  contribution.    To  a  complete  determination  or 
settlement  of  the  questions  involved,  they  are  necessary  parties. 
Their  interest  in  the  amount  of  the  judgment,  whether  the  action 
be  against  the  survivor  alone  or  not,  is  direct.     It  is  also  ad- 
verse to  the  plaintiff.     If  the  action  were  against  the  survivor 
alone,  their  liability  to  contribute  could  be  no  more  than  their 
proportion  of  the  judgment  collected  from  him.    If  he  succeeded 
in   defeating  the   action,  there  would  be  no  contribution.     It 
seems  evident  that  it  is  the  true  and  intent  meaning  of  this  pro- 
vision of  the  code,  and,  indeed,  authorized  by  its  express  lan- 
guage, that  all  these  parties  should  be  joined  as  defendants,  and 
that  their  rights  and  liabilities  should  be  determined  in  a  single 
action.     The  evident  policy  of  legislation  is  to  avoid  a  multi- 
plicitv  of  suits,  and  to  reach  an  end  to  litigation.    The  English 
courts  no  longer  follow  the  old  common  law  rule,  making  the 
solvent  surviving  joint  obligor  alone  liable  to  the  obligee  in  the 
joint  contract.     They  permit  the  action  to  be  brou<.^ht  against 
the  administrators  in  the  first  in.stance,  whether  the  survivor  be 
sofvent  or  not.     Several  of  the  American  states_hold  with  the 
English   courts.     See   Pom.   Rem.   &   Rem.   Rights,   §§302-304; 
Bliss,  Code  Pleading,  §§105,  106;  Braxton  v.  State,  25  Ind.  82; 
Burgoyne  v.  Insurance  Co.,  5  Ohio  St.  586 ;  Trimmier  v.  Thom- 
son, 10  S.  C.  164.    A  number  of  code  states  hold  differently,  but 
we  think  not  with  the  better  reason.     See  Voorhis  v.  Child,  17 
N.  Y.  354 ;  Sherman  v.  Kreul,  42  Wis.  33.    We  are  of  the  opin- 
ion that  the  trial  court  did  not  err  in  overruling  the  demurrer, 
nor  in  refusing  the  instruction  quoted.     *     *     * 

Judgment  affirmed* 

•See  also  Lawrence  v.  Doolan,  68  Cal.  309. 


308  PARTIES  TO  ACTIONS.  [ChAP.  II. 

UNION  BANK  v.  MOTT. 

27  N.  r.,  633.      [1863.] 

'Action  against  Garrett  S.  Mott  and  Jacob  H.  Mott  to  recover 
some  ninety  six  thousand  dollars  alleged  to  have  been  fraudu- 
lently overdrawn  by  them  by  collusion  with  the  defendant's 
book-keeper. 

Pending  the  action,  Jacob  H.  Mott  died,  and  letters  testamen- 
tary were  granted  to  Julia  M.  Mott,  as  executrix.     *     *     * 

*  *  *  The  cause  was  again  noticed  for  trial  before 
the  referee,  in  December  last.  On  the  28th  of  that  month,  the 
plaintiff  obtained  an  order  from  Mr.  Justice  Leonard,  at  special 
term,  requiring  the  defendant,  Garrett  S.  ]\Iott,  and  the  execu- 
trix of  the  will  of  Jacob  II.  Mott,  deceased,  to  show  cause  at 
the  special  term,  on  the  first  Monday  in  January,  why  the  cause 
should  not  be  revived  against  said  executrix,  and  why  said  exec- 
utrix and  Garrett  S.  Mott  should  not  be  required  to  answer  the 
supplemental  complaint,  a  copy  of  which  was  annexed  to  the 
plaintiff's  petition,  on  which  the  order  to  show  cause  was  ob- 
tained. 

The  supplemental  complaint  demanded  judgment  against  the 
defendant,  Julia  M.  Mott,  as  executrix,  and  against  the  said 
Garrett  S.  Mott,  and  each  of  them,  for  the  sum  of  .$97,254.90, 
and  interest  from  Feb.  9th,  1851,  besides  costs,  and  that  the 
plaintiffs  have  execution  therefor,  as  well  against  the  body  of 
the  defendant,  Garrett  S.  Mott,  as  against  his  property. 

The  petition  and  the  order  were  served  upon  the  attorney  for 
Garrett  S.  Mott,  but  the  executrix,  being  in  the  state  of  Massa- 
chusetts, no  service  was  made  upon  her,  and  on  the  7th  of  Janu- 
ary, on  hearing  of  the  motion  between  the  plaintiff  and  Garrett 
S.  Mott,  the  motion  for  leave  to  revive  the  action  against  the 
executrix  was  denied.  The  plaintiff  appealed  from  that  order 
to  the  general  term,  where  the  order  was  affirmed,  and  the  ap- 
peal to  this  court,  which  is  now  asked  to  be  dismissed,  is  from 
the  order  of  affirmance. 

Selden,  J.  The  defendants'  counsel  insists  that  the  original 
defendants  were  charged  upon  a  joint  liability,  which  survived 
against  Garrett  S.  Mott  only,  on  the  death  of  his  co-defendant, 
and  that  the  action  could  not,  for  that  reason,  be  revived  against 
the  representative  of  the  deceased  defendants.  If  the  action 
were  founded  upon  the  joint  liability  of  the  defendants  arising 


Sec.  3.]  union  bank  v.  mott.  309 

out  of  an  implied  contract  on  their  part  to  return  the  money 
wrongfully  obtained  by  them,  which  is  the  usual  form  of  action 
in  such  cases,  the  position  of  the  defendants'  counsel  would  be 
correct.     (Voorhis  v.  Childs'  Executor,  17  N.  Y.,  354).     The 
plaintiff's  counsel,  however,  insists,  and  I  think,  correctly,  thafV^'-^ — ^**^/ 
the  basis  of  the  action  is  tort,  and  not  contract,  express  or  im-  <-«>"*^  ^  ^^^^ 
plied;  that  its  obiect  is  not  to  recover  for  money  had  and  re-  *^^A<'?^^  » ^ 
ceived  by  the  defendants  to  the  plaintiff's  use  (thus  waiving  the  ^  '^k*'^'^'^'^*^  >■ 
tort),  but  to  obtain  judgment  for  the  damages  which  the  plain-    Ky-**-**-**''^ " 
tiff  has  sustained  through  the  fraudulent  conduct  of  the  defend- 
ants.   This  being  the  true  foundation  of  the  action,  and  all  torts,  "^^^^  ps>/^. 
committed  bv  more  than  one  person,  furnishing  several  as  weir  <^  ^^rv-*^  '^ 
as  joint  causes  of  action,  the  right  of  action  survived,  as  well 
against  the  personal  representative  of  the  deceased,  as  against 
the  surviving  defendant.     The  surviving  wrongdoer  could  notj 
however,  in  a  common  law  action  to  recover  damages,  be  joined 
with  the  representatives  of  his  deceased  associates,  for  the  reason 
that  there  is  no  .loint  liability,  and  neither  the  same  judgment    ^j^ 
could  be  rendered,  nor  the  same  execution  issued,  against  both.   ^ttc/^C^^-- 
The  code,  I  think,  has  made  no  change  in  this  respect.     It  has  ^^^,.,.^^Xv.  Aaaaj 
not  authorized,  in  actions  merely  personal,  for  the  recovery  of  cyy^  ,WA^/v 
money  only,  the  joinder  of  defendants  primarily  and  personally   ^^^  ■*~'''-*:f"  ^ 
liable,   with   others   liable    only   in    a   representative   capacity.   ^-^^»^-«^^-''>-^^^ 
(Gardner  v.  Walker,  22  How.  Pr.,  405;  Voorhis  v.  Childs'  Ex-  ^^'^'^  " 
ecutor,  17  N.  Y.,  355.)     Where  parties  are  jointly  and  severally 
liable,  either  for  torts,  or  upon  contracts,  the  personal  representa- 
tives of  deceased  parties  may  be  proceeded  against  by  action  at 
the  same  time  with  actions  against  the  surviving  parties,  but  it 
must  be  by  separate  actions,  and  not  by  joining  both  classes  of 
defendants  in  one  action;  and  on  the  decease  of  one  of  several 
defendants  thus  liable  in  a  pending  action,  such  action  cannot 
be  revived,  as  a  joint  action,  against  the  surviving  parties  and 
the  representatives  of  the  deceased  party.     I  can,  however,  see 
no  objection  to  the  revivor  of  the  suit  in  such  cases,  as  against  the 
representatives  of  the  deceased  party  as  a  separate  action,  as  was 
suggested  by  Mr.  Justice  Welles,  in  Gardner  v.  Walker,  supra. 
Such  is  undoubtedly  the  appropriate  course  on  the  death  of  a 
party  severally  liable  on  a  bill  or  note,  joined  with  other  parties, 
as  defendants  under  section  120  of  the  code  of  procedure;  and 
there  would  seem  to  be  great  impropriety  in  extending  that  prac- 
tice to  all  cases  of  joint  and  several  liability.    Section  121  of  the 
Code  may  properly  be  held  to  justify  that  course.     Thus  far  I 


310  PARTIES   TO    ACTIONS.  [ClIAP.  IT. 

have  deemed  it  proper  to  consider  the  merits  of  the  question  in- 
volved in  the  appeal,  the  subject  havinj;  been  discussed  by  coun- 
sel, although  the  merits  are  not  before  the  court  on  this  motion. 
The  papers  do  not  disclose  the  ejrounds  upon  which  the  su- 
preme court  denied  the  plaintiff's  motion;  but,  assuming  it  to 
have  been  held  by  that  court  that  there  could  be  no  revivor  of 
the  action  as  a  joint  one  against  Garrett  S.  Mott  and  the  repre- 
sentatives of  Jacob  II.  Mott,  they  must  have  regarded  the  motion 
made  in  the  action  against  the  surviving  party,  as  irregular. 
The  papers  were  served  on  tlu*  attorney  of  Garrett  S.  Mott  only, 
•  ^  no  service  having  been  made  on  the  executri.x  of  Jacob  II.  Mott. 
''  Vvo  %-o.^iM.      The  motion,  therefore,  was  made  against  (hirrett  S.  Mott,  in  an 
iL^\j^o.-vv>-«-    action  in  which  the  petitioner  was  the  plaintiff,  and  he  alone  w;is 
':>-".|»>^^"^-^^^"^"^efendant,  for  leave  to  revive  a  separate  action  in  favor  of  the 
'"^•^'^^^^Vf^^   same  plaintiff  against  another  defendant.  In  that  question,  Gar- 
jtX/vsuv^  ^-«»^'<1S,  ^'6tt  S.  Mott  had  no  interest.     lie  was  no  proper  partv  to  the 
rv^iL»^^-^Wjc^  proceeding,  and   if  the  order  asked   for  had  been   granted,   it 
-o  o>u>Ji-^  w^  would  have  been  entirely  nugatory.     The  denial  of  the  motion, 
under  such  circumstances,  represents  no  question  which  can  be 
reviewed  in  this  court.     It  in  no  way  alfeeted  the  substantial 
rights  of  the  appellant,  which  would  have  gained  nothing  if  the 
motion  had  been  granted,  and  has  lost  nothing  by  its  denial.    If 
the  right  existed,  as  I  am  inclined  to  think  it  did,  to  revive  the 
action  against  the  executrix  of  Jacob  11.  Mott,  that  right  re- 
mains wholly  unaffected  by  the  decision  which  was  made  in  the 
court  below.     The  appeal  should  therefore,  be  dismissed  with 
costs. 

Ordered  accordingly. 


^    ^ 


RYAN  V.  RIDDLE. 

78  Mo.,  521.     [1383.] 

Martin,  C.  The  plaintiffs  sue  as  joint  obligees  in.  a  bond. 
The  bond  was  executed  by  James  Riddle,  defendant,  as  sole 
obligor,  in  favor  of  the  plaintiffs  and  the  defendant,  Smith,  as 
joint  obligees.  It  seems  that  defendant,  James  Riddle,  sold  to 
Josiah  J.  Ryan,  Luther  Shobe  and  Frank  Smith,  a  stock  of  tools 
used  by  him  in  the  tin  business,  and  that  in  consideration  of  the 
sale  he  gave  them  his  written  obligation  conditioned  that  he 
would  not  manufacture  tinware  or  sell  stoves  in  the  town  of 


Sec.  3.]  Ry.vn  v.  riddle.  311 

Butler  for  the  space  of  one  year.  The  plaintiffs,  being  two  of 
the  obligees,  bring  this  suit,  alleging  a  breach  of  the  bond  by 
Riddle  the  obligor;  they  further  allege  in  substance  that  Frank 
Smith,' their  co-obligee,  at  the  execution  of  the  bond  and  smoe 
that  time,  has  been  secretly  engaged  with  Riddle  and  with  others 
in  manufacturing  tinware;  and  that  he  refused  to  30m  with 
plaintiffs  in  the  prosecution  of  their  suit,  for  which  refusal  he 
was  made  a  defendant  under  the  provisions  of  the  practice  act. 
The  defendant  Riddle  demurred  to  the  petition,  and  judgment 
was  rendered  in  favor  of  the  defendants,  from  which  a  writ  of 
error  is  prosecuted  in  this  court. 

The  instrument  sued  on  i-^  M.>arlv  a  joint  obligation  fcr  the 
payment  of  money.  Aj  common  law  no  action  cnmlcLb^jnami 
Fained  on  it  excJjtinUicMiame^  the  obligees  or  theirjieiirg, 
.';;iII^U^^^rn[rir^i^5^I^^^  in  error  that  this  rule 

^JlhT^mon  law  has  been  modified  by  section  3466  ot  the^        ^^ 
Practice  Act,  which  reads  as  follows:    "Parties  who  -^^^^^^  ^^:^ 
in  interest  must  be  joined  iis  plaintiffs  or  defendants;  but  if  theV    V. 
consent  of  anyone  who  should  be  joined  as  plaintiff  cannot  be 
obtained,  he  may  be  made  a  defendant,  the  reason  thereof  beingj 
stated  in  the  i3etition."     R.  S.  1879,  §3466.       This  provision 
has  remained  in  the  same  language  since  the  adoption  of  our  code 
of  practice.    It  embodies  a  rule  familiar  to  equity  pleaders,  but 
it  was  unknown  at  common  law.     The  construction  given  to  it 
in  modern  practice  has  not  been  uniform.  In  some  states  it  has 
been  applied  to  law  ca.ses.    Hill  v.  Marsh,  46  Ind.,  218;  while  in 
others  it  has  been  confined  to  equity  cases.    Andrews  v.  Mokel- 
umne  Hill  Co.,  7  Cal.,  330.  If  it  was  still  open  for  construction 
in  this  state,  we  might  hesitate  between  conflicting  constructions. 
Habicht  V.  Pemberton,  4  Sanf.,  657.    But  at  an  early  day  our  ^^^^ 
supreme  court  held  that  this  clause  in  our  practice  act  did  not.        ^,  ^^ 
authorize  any  number  less  than  the  whole  of  the  obligees  in  a.^^^^,^ 
bond  for  the  payment  of  money jtn  maintain  a  suit  upon  it.  Clark  ^^^^^^ 
V"CabTe,  21  Mo.  223;  Rainey  v.  Smizer,  28  Mo.,  310. 

In  an  action  of  ejectment  brought  in  the  name  of  the  trustees 
of  a  corporation,  one  of  the  trustees  appeared  in  court  and  as 
plaintiff  asked  leave  to  dismiss  the  case  so  far  as  it  concerned 
him  which  was  refused  by  the  court  upon  the  other  plaintiffs 
cnvin-  bond  to  indemnify  him  against  costs.  The  learned  judge 
living  the  opinion  in  the  appellate  court  held  .that  there  was  no 
error  in  this  action  of  the  court  for  the  reason  that  upon  his  re- 
fusal to  join  as  plaintiff  he  might  have  been  placed  on  the  other 


312  I'AKTIES   TO   ACTIONS.  [ClIAl'.  II. 

side  as  defendant.  McAllen  v.  Woodcock,  60  Mo.,  174.  The 
pi-evious  cases  were  not  overruled  or  alluded  to  in  the  opinion. 
The  rights  and  obligations  of  the  plaintilYs  as  officers  and  trus- 
tees of  a  corporation  present  a  marked  distinction  betwen  them 
and  the  obligees  of  a  note  or  bond,  which  would  naturally  forbid 
the  result  of  overruling  the  previous  cases  on  such  instruments, 
in  the  absence  of  any  allusion  to  them.  These  early  cases  have 
been  accepted  and  followed  by  the  profession  for  nearly  thirty 
years,  and  there  is  nothing  peculiar  to  the  case  at  bar,  which 
can  justify  a  distinction  in  its  favor. 

Certain  incidents  flow  from  the  nature  of  a  joint  obligation  or 
rather  an  obligation  inuring  to  joint  obligees.     They  are  joint 
proprietors,  and  one  must  have  as  nuich  right  as  the  other  to  say 
and  determine  when  suit  shall  be  brought  and  when  it  shall  be 
compromised  or  settled  without  suit.     Neither  can  sue  alone  for 
his  proportion.     1  Parsons  Con.,  p.  13.     It  has  been  settled  in 
^^j^  ^     this  state  that  one  of  two  joint  obligees  of  a  contract  has  the_ 
.^^nr^Nji-    power  to  discharge  and  release  the  joint  obligation.     This  was 
Ml  t:X*^  recently  held  in  the  case  of  Henry  v.  Mt.  Pleasant  Township  of 

^  ^'^'^^V*^^**' Bates  Co.,  70  Mo.,  497,  in  which  it  was  charged  in  the  petition 
that  the  plaintiff's  co-obligee  had  fraudulently  and  collusively 
combined  with  the  obligor  being  sued  to  defraud  the  plaintiff  out 
of  hLs  portion  of  the  joint  demand  by  receiving  the  amount  of 
it  and  giving  a  bond  to  indemnify  the  obligor  against  the  plain- 
tiff.   The  judgment  of  the  lower  court  sustaining  a  demurrer  to 
the  petition,  was  affirmed,  and  the  case  of  Clark  v.  Cable  was 
^:^S^^^^^J^]|^    cited  in  support  of  the  opinion.    If  one  of  the  obligees  can  settle 
^Vg^^^    and  dispose  of  the  whole  demand,  it  would  be  difficult  to  deny 
j>,^,^^j^  Gs^       him  upon  principle  as  well  as  authority  the  lesser  right  of  pre- 
►J«-r-ir  A-'^'--^  venting  suit  upon  it  without  his  consent.     The  right  of  release 
^'''*\'^and  discharge  remaining  with  him  would  render  the  right  to 
sue  without  him  an  unavailing  advantage,  because  he  could  re- 
lease the  whole  demand  after  suit  as  w^ell  as  before. 

It  seems  to  me  the  obligor  of  the  contract  is  also  interested  in 
the  mode  of  enforcing  the  obligation  he  has  assumed.  A  suit 
against  him  by  an  obligee,  although  including  the  other  obligee 
as  defendant,  necessarily  involves  an  issue  in  which  he  is  not  in- 
terested, viz.,  a  settlement  of  the  interest  or  share  belonging  to 
each  obligee  respectively.  This  might  involve  the  taking  of  a 
long  account  and  the  settlement  even  of  a  partnership. 

For  these  reasons,  I  am  persuaded  that  the  disability  of  the 
plaintiffs  to  maintain  their  suit  in  this  form  is  an  infirmity  which 


Sec.  3.]  eyan  v.  riddle.  313 

inheres  in  the  nature  of  the  contract  they  entered  into,  and  is 
not^mere  matter  of  form  intended  to  be  abolished  by  the  Practice 
Act.    The  judgment  is  affirmed.    Phillips,  C,  concurs. 

WiNSLOw,  C,  dissenting:  I  cannot  concur  in  the  foregoing 
report.  In  my  opinion  Revised  Statutes,  section  3466,  was  in- 
tended to  apply  to  all  classes  of  actions.*  The  code  applies  to 
all  classes  of  actions,^  and,  in  adopting  the  rules  of  practice  under 
it,  its  framei-s  simply  adopted  many  of  the  old  equity  rules  of 
practice,  because  of  their  greater  liberality  and  for  the  express 
purpose  of  abating  the  strictness  of  the  old  common  law  rules. 
It  may  as  well  be  said  that  the  entire  code  only  applies  to  equit- 
able actions,  as  that  the  section  in  question  is  so  limited.  There 
is  no  exception  to  indicate  any  such  intention.  Every  action  is 
now  an  action  on  the  facts,  all  the  old  forms  and  distinctions 
having  been  abolished.  The  last  expression  of  this  court  is  to 
the  effect  that  the  section  in  question  applies  to  an  action  of 
ejectment,  which  is  not  an  equitable  action.  McAUen  v.  Wood- 
cock, 60  ^lo.  174.  Henry  v.  Mt.  Plea.sant  Tp.,  70  ^lo.  497-500, 
does  not  conflict  with  McAllen  v.  Woodcock.  There  only  one  of 
two  joint  obligees  had  sued,  and  it  was  held  that  he  could  not 
sue  alone.  The  other  obligee  was  not  before  the  court,  un  either 
side.  The  question  involved  here  was  not  directly  considered.  I 
think  that  Clark  v.  Cable  and  Rainey  v.  Smizer,  cited  in  the 
majority  report,  should  be  overruled,  and  a  more  liberal  and  ra- 
tional rule  established.  They  are  adverse  to  the  true  spirit  of 
the  code. 

The  majority  report  was  approved,  Ray,  J.,  dissenting;  Sher- 
wood, J.,  absent.f  o^     ^^. 


RIZER  v.  GILLPATRICK. 
16  Kan.  564.     [1876.] 

The  opinion  of  the  court  was  delivered  by 

Brewer,  J. :  The  facts  of  this  case  are  briefly  as  follows : 
Gillpatrick  and  Rizer  were  the  administrators  of  the  estate  of 
Samuel  S.  Caswell  deceased,  appointed  in  1871.  Rizer,  into 
whose  hands  the  funds  of  the  estate  seem  to  have  passed,  de- 


*In   1889   the  following  clause  was  added  to  the  section:     "This 
section  shall  apply  to  both  actions  at  law  and  suits  in  equity." 
fAccord:     Ins    Co.  v.  Ry.,  2G  r?r.   fOr.)   838. 


314 


PARTIES  TO   ACTIONS. 


[CiiAI-.  II. 


XA/vvw-v.. . ii*^^»«  posited  them  with  the  banking  firm  of  James  Strecter  &  Co.,  of 
^ckJia^v.'^  '^  which  firm  he  was  a  member.    When  the  three  years  for  closing- 

■"^  "jkCt^-/^  estates  had  passed,  Gillpatrick  desired  to  make  a   final    settle- 
x.»«jcra>i^>»   ment,  draw  out  the  funds  from  the  bank,  and  pay  them  over  to 
the  heir.     Rizer  was  unwilling.     After  some  delay,  Gillpatrick, 
as  one  of  the  administrators,  brings  this  action  against  Streeter 
&  Co.  to  recover  from  them  the  amount  deposited,  and  makes  his 
co-administrator  a  party  defendant,  alleging  that  he  refused  to 
ci»ka_  .YAsi^M/^ '  join  in  any  settlement  of  the  estate,  and  to  join  in  bringing  this 
.^Aj..  LajvA^        Qj,  ^^y  action  to  recover  the  funds.     Demurrers  by  Streeter  & 
*'^Z^^^  •  jX    ^^■>  ^"^  ^y  t^^  co-administrator,  to  the  petition  were  overruled, 
^.^^.^^^j^^^^  ^     and  this  is  the  first  question  presented.     Subsequently  the  sole 
e»v>juv  /LA*/v..V/.-^.heir  of  the  deceased  brought  an  action  against  the  two  adminis- 
<\ .  (x3Lti<U*/-iA^^:trators  and  the  surety  on  their  official  bond,  alleging  a  final  set- 
tlement had,  since  the  commencement  of  the  suit  by  Gillpatrick, 
a  balance  due  on  said  settlement,  and    praying   judgment    for 
such  balance.     Upon  this  defendants  herein  filed  a  motion  set- 
ting up  said  proceedings,  and  asking  a  dismissal  of  this  action. 
This  motion  was  also  overruled,  and  this  is  the  only  other  ques- 
tion presented.    The  ca^se  then  proceeded  to  judgment  in  favor  of 
Gillpatrick.     The  judgment  however  directed  that  the  amount 
found  due  from  Streeter  &  Co.  be  paid  to  the  clerk  of  the  court, 
to  be  applied  under  its  order  to  the  satisfaction  of  the  demand 
of  the  heir  for  the  balance  due  from  the  estate. 

Was  there  any  error  in  these  rulings?  We  think  not.  The 
learned  counsel  for  plaintiff  in  error  contend,  that  one  adminis- 
trator cannot  sue  his  co-administrator,  nor  sue  alone  for  a  debt 
due  the  estate ;  that  under  the  executors  and  administrators  act, 
if  one  administrator  neglects  his  duty,  he  can  be  removed  by  the 
probate  court,  and  the  remaining  administrator  can  then  pro- 
ceed to  close  up  the  estate  alone,  and  that  this  remedy  is  to  the 
exclusion  of  any  other.  It  is  undoubtedly  true,  as  a  general 
proposition,  that  one  administrator,  there  being  more  than  one^ 
cannot  sue  alone  for  a  debt  due  the  estate.  There  is  a  unity  of 
interest  which  requires  that  all  should  join  as  plaintiffs.  The 
debt  is  due  to  the  estate,  and  neither  partially  nor  wholly  to 
either  administrator.  The  estate,  is  the  party  in  interest,  and  the 
legal  representatives  of  that  party  must  be  the  nominal  plain- 
tiffs. This  is  true  in  all  cases  where  there  is  a  unity  of  interest 
in  several  parties.  The  code  so  provides  (Gen.  Stat.  636,  sec. 
37)  :  "Of  the  parties  to  the  action,  those  who  are  united  in  in- 
terest must  be  joined  as  plaintiffs,  or  defendants,"    But  it  also 


ASvoL^. 


V-'^n 


\^<y^^^'\y^..A-^\-'>tt       ^   v 


Sec.  3.]  rizer  v,  gillpatrick.  315 

provides  for  a  contingency  like  the  present,  in  which  one  of  those 
united  in  interest  refuses  to  join  as  plaintiff.  The  latter  part 
of  the  same  section  reads,  '  *  But  if  the  consent  of  one  who  should 
have  been  joined  as  plaintiff  cannot  be  obtained,  he  may  be  made 
a  defendant,  the  reason  being  stated  in  the  petition."  Language  jvj<>sj1^ 
could  not  be  more  apt  for  a  case  like  the  present.  The  time  for 
closing  an  estate  having  arrived,  one  of  the  administrators  de- 
sires to  collect  from  the  bank  the  money  of  the  estate  there  de- 
posited, make  a  final  settlement,  and  pay  over  to  the  heir  the 
balance  found  due.  The  bank  refuses  to  pay,  and  the  other  ad- 
ministrator refuses  to  join  in  a  suit  to  compel  payment.  It  is 
exactly  the  condition  named  in  the  statute.  This  was  allowable 
under  the  old  practice  in  equitable  actions.  Now  there  is  but 
one  form  of  actions,  and  the  language  of  the  statute  is  general, 
applying  to  all  actions.  In  Pomeroy  on  Remedies  and  Remedial 
Rights,  a  late  work,  and  one  which  is  the  most  philosophical 
treatise  on  the  code  yet  published,  and  one  of  the  few  text-books 
among  the  many  flooding  the  press  and  the  profession  today  hav- 
ing permanent  value,  and  destined  to  rank  among  the  legal 
classics,  on  page  309,  sec.  261,  the  author  says:  ''It  is  not  in- 
dispensable, however,  that  all  the  executors  or  administrators 
should  be  plaintiffs ;  for  it  is  enough,  in  equity,  if  all  the  parties 
are  before  the  court,  so  that  gne_executor  or  administrnto^'  "^«y 
sue  as  plaintiff,  if  he  make  hfs  co-executor  or  co-administrator  a 
defendTnt"— citing  Wilkins  v.  Fry,  1  Meriv.  244,  262;  Blount  v. 
Burrow,  3  Bro.  C.  C.  90;  Dare  v.  Allen,  1  Green  Ch.  288.  And 
again,  on  page  233,  sec.  195,  he  adds,  after  quoting  sec.  37,  Code 
of  Kansas,  and  the  like  provision  from  other  states :  ' '  Referring 
to  these  provisions,  it  is  plain  that  their  language  is  general,  in- 
clusive, without  exception,  and  applying  alike  to  all  kinds  and 
classes  of  actions."  And  further,  " No , exception  being  made, 
nor  even  suggested,  the  courts  cannot,  unless  by  an  act  of  positive 
legislation,  by  an  act  of  direct  usurpation,  create  an  exception, 
and  say  that  these  general  terms  were  intended  to  apply  to  equit- 
able suits  alone,  while  legal  actions  were  intended  to  be  left  out- 
side of  their  scope  and  effect."  See  also  Decker  v.  jMiller,  2 
Paige,  150 ;  Smith  v.  Lawrence,  11  Paige,  206 ;  McGregor  v.  Mc- 
Gregor, 35  N.  Y.  218.  It  is  true,  that  Rizer  had  an  equal  right 
with  Gillpatrick,  pending  the  administration,  to  the  possession 
and  control  of  the  funds,  and  under  ordinary  circumstances 
neither  could  maintain  an  action  to  recover  these  funds  from 
the  other.    But  here,  the  duty  of  closing  the  estate,  and  paying 


316  PARTIES   TO    ACTIONS.  [ClIAI'.  II. 

over  the  balance  to  the  heir,  existed.  Rizer  refiLsed  to  discharjie 
this  duty.  One  step  of  the  duty  was  the  collection  from  the 
bank  of  the  funds  there  deposited.  The  bank  owed  the  estate  so 
much.  Both  administrators  should  have  united  in  collecting::  this 
debt.  Rizer 's  refusal  justified  Gilli)atrick  in  proceeding  alone. 
That  any  remedy  the  one  administrator  might  have  by  proceed- 
ings in  the  probate  court  does  not  exclude  the  jurisdiction  of  the 
district  court  in  this  case,  seems  clear.    Shoemaker  v.  Brown,  10 

Kan.  383.     *     *     * 

J u dgme  n t  affirmed. 

LEUCKE  V.  TREDWAY.  I 

45  Mo.  App.  507.     [1891.] 

Equitable  action  by  a  judgment  creditor  of  a  foreign  corpora- 
tion against  two  of  the  stockholders  domiciled  in  ^lissouri,  to 
charge  them  in  respect  of  their  liability  for  unpaid  stock.  De- 
cree for  plaintiff  and  defendants  appealed. 

Thompson,  J.  (after  stating  the  facts  and  holding  that  the  suit 
was  properly  brought  in  equity)  : 

This  suggestion  also  disposes  of  the  objection  urged  by  the 
defendant  as  to  the  parties  defendant.  This  objection  is,  first, 
that  there  is  a  misjoinder  of  parties;  that,  the  liability  of  the 
stockholders  being  several,  each  stockholder  should  be  proceeded 
against  separately.  Waiving  the  question  whether  this  objection 
has  been  properly  raised,  we  observe  that  the  rule  declared  w 
this  state  in  Perry  v.  Turner,  55  Mo.  418,  that  each  stockholder, 
must  be  separately  sued,  is  onlv  applicabh^  to  cases  at  law,  and 
it  proceeds  upon  the  well  known  ground  that  each  contract  of 
subscription  to  the  stock  of  the  corporation  is  a  separate  contract ; 
that  each  subscriber  assumes  a  separate  obligation,  and  may 
have  a  separate  defense;  and  that  the  modes  of  procedure  in 

^  o,x>xv^         the  legal  forum  are  not  flexible  enough  to  admit  of  the  joining 

3l  x2^        In  one  action  of  several  defendants  whose  liability,  if  nny  exists. 

'^^A-*  arises  on  separate  and  distinct  undertakings.     In  holding  that! 

t^^'^C^C^  several  stockholders  cannot  be  joined  in  an  action  at  law,  ourj 
supreme  court  has  declared  an  obvious  rule,  which  has  been  de-^ 
Glared  and  acted  upon  in  many  other  jurisdictions.  (Crease  v. 
Babcock,  10  Met.  (Mass.)  525;  Paine  v.  Stewart,  33  Conn.  516; 
Pettibone  v.  McGraw,  6  Mich.  441 ;  Hcllister  v.  Bank,  27  N.  Y. 


C»»x>x\X 


Sec.  3.]  leucke  v.  tredway.  317 

393 ;  Shafer  v.  Moriarty,  46  Ind.  9 ;  Abbey  v.  Dry  Goods  Co., 
24  Pac.  Rep.  (Kan.)  426.) 

But  this  rule  does  not  apply  to  proceedings  in  equityj  because  ^i^^3^  ^  a^^^ 
the  object  of  such  proceedings  is  more  extensive  than  that  of  W--4>^  r^f. 
the  action  at  law;  its  object  is  not  merely  to  satisfy  the  creditor  XxA*^^-.-^ 
or  creditors  who  prosecute  the  action,  but  also  to  adjust  the  ^^^^^^^tt^ 
equities  of  the  stockholders  as  among  themselves,  thus  doing,  ^s^^^;^  ,^^^^  ^ 
far  as  possible,  complete  justice  to  all  parties.     Therefore,  the  „^^,^  «v-^, 
general  rule  is  that  an  action    in    equity    should    ho.    brought  ..>  ^.-r^      ^ 
against  all  t.ho  shareboIdcrTwItliin  the  .funsdictioii.-     Thomp.  j\c>^  yJ:^ 
SUd^     sec.  353,  and  cases  there  cited;  Curran  v.  Bradner,  27  U>^2^^W^.  o- 
111    App.  582;  VonGlahn  v.  Harris,  73  N.  C.  323;  Dunston  v.  J^^^^^;;;;^^^ 
Hop  Tonic  Co.,  47  N.  W.  Rep.  (xMich.)  322;  Terry  v.  Martin,  10  ^^^^^^^  ^ 
S.  C.  263;  Wellington  v.  Ins.  Co.,  52  Hun.  408.     In  the  equity  ^^^^^ 
forum  the  question  never  is  whether  too  many,  but  always  is 
whether  too  few,  have  been  impleaded.    Considering  that  this  is 
a  suit  in  equity,  this  objection  is  unavailing.     But  the  error,  if 
it  vrere  one,  would  be  without  prejudice,  because  the  court  has 
apportioned  the  liability  between  two  defendants;  and  surely 
neither  one  of  them  ought  to  be  heard  to  complain  in^a  court  of 
justice  that  he  was  not  compelled  to  pay  all. 

Judgment  affirmed. 


OLIPHINT  v.  MANSFIELD. 

36  Ark.  191.     [1880.] 

This  was  a  suit  by  the  trustee  under  a  deed  of  assignment,  ^-^-.y^^^^^JJc^ 
for  the  benefit  of  creditors  against  a  number  of  judgment  cred-       c^^^,^,^ 
ntofs  and  the  constable,  to  restrain  them  from  levying  upon  the 
assigned  property  under  their  respective  judgments. 

The  defendants  demurred  to  the  complaint  for  a  misjoinder 
of  defendants,  and  because  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  acti  ;n.  The  court  sustained  the  demurrer  and 
dismissed  the  bill.    Plaintiff  appealed. 

H.VRRISON,  J.     *      *     *  ... 

A  misjoinder  of  defendants  is  no  ground  of  demurrer;  thafTr^XM;^^?^^ 
objection  can  only  be  taken  bv  motion  to  strike  out  the  names  of  ^  *^ 
such  as  are  improperly  joined  or  sued.  <^rvo  '^^^ 

But  there  was  no  misjoinder  in  this  case,  and  the  action  was  \^^,^  ^^ 
properly   against   all  the  defendants. 


318  PARTIES  TO   ACTIONS.  [CUAP.   II. 

Any  person  may  be  made  a  defendant  who  has,  or  claims,  an 
interest  in  the  controversy  adverse  to  the  plaintiff,  or  who  is  a 
necessary  party  to  a  complete  determination  and  settlement  of 
-the  question  involved.     Gantt's  Digest,  sec.  4476. 

Here  were  several  creditors  seeking  to  subject  the  goods 
claimed  by  the  plaintiff,  to  the  satisfaction  of  their  judgments, 
and  the  question  involved  in  controversy^  was  the  validity  of 
the  assignment  to  him  in  which  they  had  a  common  interest. 


«     *     * 


Judgment  affirmed  on  other  grounds. 

KEYES  V.  LITTLE  YORK  GOLD  WASHING  &  WATER 

COMPANY. 

53  Cal.  724.     [1879.] 

By  the  court : 

The  complaint  sets  forth  that  the  plaintiff  is  the  owner  of 
vjiJ-^tyo     certain  described  premises  known  as  bottom  land,  situated  in  the 
valley,  upon  the  banks  of  Bear  River,  about  ten  miles  from 
where  that  stream  debouches  into  the  Sacramento  Valley,  and 
r'/  >A-^«*^^  midway  between  that  point  and  the  mouth  of  the  river;  that 
''""^     j/v%A^.^w>  ^^^  defendants  are  miners  severally  engaged  in  hydraulic  mining 
^'*'^'  ^^^    ^t  points  high  up  on  Bear  River  and  its  tributaries — the  sev- 
^^T^j^^^^       oral  mining  properties  of  the  defendants  lying  within  a  radius 
^1^!,.^,^^  vA*Vi-*^of  seven  miles  upon  the  hilltops  adjacent  to  the  river,  and  being 
r-o^  <jN>-A>^        severally  wrought  and  carried  on  by  the  respective  defendants, 
Ua  ^Lo.,<^>~~K      and  that  the  several  dumps  used  by  the  defendants  respectively 
in  their  mining  pursuits  are  some  of  them  in  the  bed  of  the 
river,  others  in  the  beds  of  steep  ravines  and  gulches  immediate- 
1}'  contiguous  to  and  leading  into  the  bed  of  the  river  and  its 
tributaries;  that  the  tailings  of  the  several  mining  claims  de- 
posited on  these  dumps  are  swept  down  the  river  by  the  force 
of  the  current  until  they  reach  the  lands  of  the  plaintiff  below, 
upon  which  they  are  deposited,  and  which  they  cover  so  as  to 
destroy  the  value  of  the  said  lands.     The  prayer  is  that  an  m^ 
junction   issue  enjoining   the   defendants   from   depositing  the 
tailings  and  debris  of  their  several  mining  claims  so  that  they 
reach  the  channel  of  the  river,  etc. 

The  defendants  appeared  to  the  action,  and  filed  a  demurrer 


Sec.  3.]  keyes  v.  little  york  gold  co.  319 

to  the  complaint  upon  several  grounds— and,  among  others,  upon  ^^c^^  j^s^ 
the  groimd  that  there  is  a  misjoinder  of  parties  defendant,  in  ^^^' 
that  it  did  not  appear  by  the  complaint  that  the  defendants 
jointly  committed  any  of  the  acts  complained  of,  or  are  acting 
therein  in  concert  or  by  collusion  with  each  other,  but  that,  on 
the  contrary,  it  did  appear  by  the  complaint  that  the  defendants 
had  no  interest  in  common  in  the  subject  matter  of  the  suit, 
but  were  acting  severally  and  without  any  joinder  or  co-opera- 
tion on  the  part  of  the  defendants,  or  any  of  them.     The  de- 
murrer was  overruled  by  the  court  below,  and  the  propriety  of 
its  action  in  that  respect  is  brought  in  question  by  this  appeal. 
An  injunction  is  granted  when  the  relief    sought    consists 
wholly  or  in  part  of  restraining  the  commission  or  continuance 
of  acts  being  done  or  threatened,  or  when  the  commission  or 
continuance  of  acts  during  litigation  will  produce  irreparable 
injury,  or  render  a  judgment  in  plaintiff's  favor  ineffectual. 
(Code  Civil  Procedure,  section  526).    The  injunction  ordered  at 
the  final  hearing  by  the  court  below  was  not  auxiliary  to  any 
other  provision  of  the  decree,  or  added  to  render  some  other 
final  order  more  effective.     It  was  the  only    decree   soncrbj^lv^ 
plaintiff,  and  Ls  the  very  most  that  the  allegations  of  his  bill 
would  have  entitled  him  to  had  the  defendants  been  charged 
with  co-operation  and  a  common  design  in  doing  that  which 
each  threatened. 

There  are,  indeed,  recitals  in  the  complaint  alleging  plaintiff  7  "YM)  ^-evw^ 
to  have  already  sustained  damages,  but  no  relief  is  sought  upon  \  <>-><«u^  V 
them  as  allegations  constituting  the  basis  for  a  decree.     They  ^ 
are  rather  in  the  nature  of  statements  of  evidence  tending  to 
sustain  the  averments  that  like  damages  will  occur  in  the  fu. 
ture,  unless  defendants  are  restrained.     In  the  case  of  a  de- 
murrer for  a  misjoinder  (even  had  damages  for  past  injuries 
been  demanded  in  this  case)   no  judgment  for  damages  could 
have  been  rendered  against  the  defendants  jointly,  because  they 
are  charged  each  to  have  committed  a  tort  severally;  and  sev- 
eraljudgments  for  damages  could    not    have    been    rendered^ 
agains^_each  defendant,  in  the  same  action,  for  such  -jud^ents 
would  have   demonstrated  a  misjoinder. 

No  damajjces  are  claimed. in  the  prayer  for  judgment  or  in  the 
"points"  of  counsel.     llie_wronc;^complained  of  is  that  each  of 
the  defendants,  acting  for  himself,  and  not  in  collusion  with  nr 
combina^ionM-ith_an>-  other,  threatens  to  continue  to  deposit  the_ 
tailings  from  tJip  wnrkiags_of_the_mine  in  such  position,  on  or 


320  PARTIES  TO   ACTIONS.  [CHAP,  II. 

adjacent  to,his  own  premises,  as  that,  from  natural  causes,  they 
will  flow  down  or  be  forced  down  upon  the  plaintiff's  premises. 
If  a  nuisance  was  created  by  the  exposure  of  the  dumps  to 
the  action  of  the  waters  of  Bear  River  and  its  tributaries,  a 
nuisance  was  committed  by  each  of  defendants,  when  he — dis- 
connected from  the  others — made  or  threatened  such  deposit; 
or,  if  it  be  said  that  the  matter  of  the  reasonable   use   of   the 
stream  can  enter  into  the  inquiry,  there  could  be  no  nuisance 
by  anylof  the  defendants  who  had  made  only  a  reasonable  use. 
In  either  view  of  the  case,  there  is  a  misjoinder  nf  parties  de- 
fendant.    The  bare  statement  would  seem  to  prove  the  proposi- 
tion, since  the  very  essence  of  the  objection  of  a  misjoinder  of  a 
defendant  with  others  is  that  he  is  not  connected  with  or  af- 
fected   by    the     single     cause    of    action,     if     there     is    but 
one,    or    that    he     is    not    connected    with    or    affected    by 
one    or    more    of    several    separate    and    distinct    causes    of 
action,   if   several   are   alleged.     If   any   one  of  these   defend- 
ants was  liable  to  be  enjoined,  he  could  have  bepn  onininnd  in  a 
separate  suit,  the  subject  matter  of  such  suit  being  the  alleged 
/-threatened  wrong.    If_^anyone  of  the  defendants  is  not  liable  to 
\  be  enjoined  in  a  separate  suit,  he  cannot  be  made  liable  in  an 
\  action  like  the  present ;  for  there  is  no  principle  of  equity  which 
1  would  make  a  man  responsible  for  a  w-rong  which  he  has  neither 
1  done  nor  threatened,  merely  by  joining  him  with  other  defend- 
\ants  who  may  independently  have  thrpntpnpd  a  similar  wroncr. 
Several  cases  were  cited  by  the  counsel  for  respondent  which 
it  was  claimed  would  sustain  the  joinder  of  the  defendants  in 
this  action,  but  an  examination  will  clearly  distinguish  them 
from  the  present.     Mayor  of  York  v.  Pilkingtou,  1  Atk.  282, 
was  a  bill  of  peace  to  prevent  a  multiplicity  of  suits.    In  a  cer- 
tain sense,  all  bills  of  peace  are  intended  to  prevent  multiplicity 
of  suits,  but  it  is  a  non  sequitur  to  assert  that  wherever  the  re- 
sult of  assumed  jurisdiction  by  a  court  of  equity  will  relieve  the 
plaintiff  of  the  inconvenience  of  bringing  several  separate  ac- 
tions at  law  or  suits  in  equity,  the  complaint  is  to  be  termed  a 
bill  of  peace.     In  Mayor  v.  Pilkington,  a  bill  was  brought  to 
quiet  the  plaintiffs  in  a  right  of  fishery  in  the  River  Ouse,  of 
which  they  claimed  the  sole  fishery  "of  a  large  tract"  against 
the  defendants,  who,  it  was  suggested  by  the  bill,  claimed  several 
rights,  either  as  lords  of  manors  or  occupiers  of  adjacent  lands. 
The  main  question  was  whether,  in  view  of  the  fact  that  there 
was  no  privity  between  the  defendants,  the  bill  could  be  main- 


Sec.  3.]  keyes  v.  little  york  gold  co.  321 

tained.  Holding'  the  affirmative  on  this  proposition,  the  court 
of  chancery  was  authorized  to  retain  the  cause  for  other  pur- 
poses. But  the  gravamen  of  the  bill  was  not  that  the  defendants 
were  several  and  separate  trespassers  (the  view  upon  which  the 
demurrer  was  sustained  at  the  first  argument,)  but  was  that  the 
plaintiff  had  an  exclusive  right  against  which  defendants  were 
asserting  adverse  rights.  The  proceeding  was  analogous  to  our 
action  to  quiet  title.  The  present  case  more  resembles  Dilley  v. 
Doig,  2  Vesey,  Jr.  486,  in  which  the  proprietor  of  a  copyright 
sought  to  restrain  in  the  same  suit  several  and  independent  in- 
fringements of  his  right  by  different  persons.  In  that  case  there 
was  no  allegation  in  the  bill  of  a  claim  of  right  on  the  part  of 
the  defendants  to  sell  copies  of  the  spurious  edition  of  the  book, 
and,  from  the  nature  of  the  circumstances  detailed,  there  could 
have  been  no  such  allegations.  The  defendants  were  alleged  to 
be  severally  wrongdoers  without  anj'  combination.  The  liord 
Chancellor  said:  "The  right  against  the  different  booksellers  is 
not  joint,  but  perfectly  distinct;  there  Ls  no  privity."  The  sub- 
ject matter  of  the  bill  was  a  wrong  done  by  each  of  the  book- 
sellers; its  object  was  not  to  obtain  a  final  determination  that 
the  plaintiff  had  the  exclusive  right,  and  that  the  defendants 
had  no  right  (for  it  was  not  asserted  that  they  claimed  any) 
but,  as  in  the  present  case,  simply  to  enjoin  wrongs  theatened 
by  the  defendants  severally,  and  not  jointly."  In  Whaley  v. 
Dawson,  2  Shoales  &  L.  367,  a  demurrer  was  sustained,  "for 
that  it  appeared  by  said  bill  that  the  same  was  exhibited  against 
the  defendants  and  one  Michael  Carraher  for  several  and  dis- 
tinct causes  and  matters,  that  have  no  relation  or  dependencies 
on  each  other."  In  Brinkerhoft'  v.  Brown,  6  Johns.  Ch.  137, 
Chancellor  Kent  remarks:  "There  was  a  series  of  acts  on  the 
part  of  the  persons  concerned  in  the  'Genesee  Company,'  all 
produced  by  the  same  fraudulent  intent,  and  terminating  in  the 
deception  and  injury  of  the  plaintiff.  The  defendants  per- 
formed different  parts  in  the  same  drama;  but  it  was  still  one 
piece — one  entire  performance,  marked  by  different  scenes." 
All  the  defendants  (except  such  as  were  parties  necessary  to  the 
final  determination  of  the  issues  between  plaintiffs  and  those 
Avho  had  taken  part  in  the  fraud)  had  been  actors  in  a  greater 
or  less  degree  in  carrying  out  the  common  fraudulent  design. 
The  case  would  have  been  more  analogous  to  the  present,  if  here 
the  several  defendants  had  been  charged  with  threatening  the 
injury  in  pursuance  of  a  purpose  adopted  by  a  common  agree- 
21 


322  PARTIES  TO  ACTIONS.  [CliAl'.    II. 

ment.  It  is  claimed  that  New  York  &  New  Haven  Railroad 
Company  v.  Schuyler,  17  N.  Y.  603  (34  N.  Y.  45),  is  strongly  in 
point.  But  that  was  a  ease  where  the  plaintiffs  claimed  a  right 
to  have  certain  stock  canceled  as  having  been  fraudulently  is- 
sued, and  the  defendants,  as  the  complaint  alleged,  "all 
claimed  rights;  *  *  *  all  asserted  a  claim  upon  the  com- 
pany in  some  form."  (17  N.  Y.  594-595.)  The  case  was  de- 
termined upon  its  analogies  to  a  bill  to  qiiiei  title  and  to  remove 
a  cloud.  The  learned  judge  likened  it  to  a  case  of  an  individual 
clothed  with  the  legal  title  to  the  railroad  property,  receiving 
its  gross  earnings  for  the  purpose  of  dividing  the  net  profits 
among  a  large  number  of  individuals  whose  rights  were  evi- 
denced by  certificates  of  stock.  In  such  a  case,  if  a  new  class 
should  come  forward  claiming  the  same  rights,  and  presenting 
instruments  of  the  same  kind  as  the  certificates,  bearing  on  their 
face  all  the  evidences  of  genuineness,  but  in  fact  unauthorized 
and  spurious,  it  would  be  the  right  and  duty  of  the  legal  owner 
(upon  settled  principles  of  equity)  to  call  the  false  claimants 
into  Court,  in  order  to  remove  the  cloud  upon  the  equitable  in- 
terests of  those  whom  he  represented.     (Ibid.  598). 

It  is  unnecessary  to  dwell  upon  the  analogies  between  the 
cases  of  N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler,  and  the  Mayor 
of  York  V.  Pilkington,  or  on  the  very  marked  differences  be- 
tween the  former  and  the  case  at  bar.  In  the  court  of  appeals, 
34  N.  Y.,  the  complaint  was  expressly  characterized  as  "a  bill  of 
peace,  to  quiet  titles,  settle  rights,  and  prevent  a  multiplicity  of 
suits."  An  examination  of  Thorpe  v.  Brumfit,  Law  R.  Ch.  App. 
Cases,  vol.  8,  shows  that  the  parties  all  had  a  contract  relation 
with  each  other,  by  reference  to  which  their  respective  rights 
were  to  be  determined ;  and  further,  that  no  question  of  joinder 
was  raised,  but,  on  the  contrary,  the  defendant's  all  answered 
together,  insisting  that  they  all  had  a  certain  right  of  way,  to 
be  exercised  in  a  reasonable  and  proper  manner  (p.  653).  In 
People  V.  Morrill,  26  Cal.,  the  objection  was  that  there  was  a 
misjoinder  of  plaintiffs.  It  was  held  (and  apparently  admitted) 
that  all  the  plaintiffs  were  properly  joined,  so  far  as  relief  by 
cancellation  of  the  patent  was  concerned,  and  it  was  said  that 
the  demurrer  should  be  overruled  because  too  general. 

We  think  the  distinction  between  the  case  at  bar  and  the  other 
American  cases  cited  by  the  respondent — Gaines  v.  Chew,  2 
How.  619,  amongst  them — is  equally  susceptible  of  explanation. 
With  respect  to  the  Scotch  cases,  it  is  enough  to  say  that,  under 


Sec.  3.]  keyes  v.  little  york  gold  co.  323 

the  system  of  law  which  obtains  in  Scotland,  it  would  appear 
that  parties  and  causes  of  action  may  be  united  in  a  manner 
not  permissible  in  countries  where  the  common  law  prevails ;  the 
inconveniences  and  evils  resulting  from  the  joinder  of  parties 
without  community  of  interest  being  there  avoided  by  a  sys- 
tem which  allows  the  "conjunction"  of  causes  and  the  submis- 
sion of  special  issues  to  the  triers  of  fact. 

At  law,  where  an  action  for  tort  is  brought  against  several  co- / 


<^ fendants,  it  is  essential  that  the  wrong  complained  of  be 
joint.  TDTcey  on  Parties  449).  This  rule  is  thoroughly  under- 
stood,  and  is  not  disputed.  n_there  are  any  exceptions  in 
equity  they  have  not  been  called  to  our  attention.  We  are  con- 
vinced that  none  can  be  found  which  will  authorize  the  joinder 
of  defendants  attempted  in  the  proceeding  before  us.  We  have 
no  doubt  that  the  objections  to  the  complaint  above  considered 
could  properly  be  presented  by  a  demurrer  on  the  ground  of 
misjoinder  of  parties  defendant. 

Judgment  and  order  reversed  and  cause  remanded,  with  di- 
rections to  the  court  below  to  sustain  the  demurrer  to  the  com- 
I)laint.     Remittitur  forthwith. 


WINSLOW  V.   DOUSMAN. 

13  Wk.  437.      [1864.]  .- 

Appeal  from  the  Circuit  Court  for  Milwaukee  County.  ^sUjlSl.  Cs_  «^ 

The  complaint  in  thi.s  action  avers  that  in  October,  1863,  the  W  ra-^5.'^^ 
plaintiff  recovered  in  said  circuit  court  a    judgment    against  <*'^-V*^"-  V 
George  D.  Dousman  for  .$4,576.85  damages,  in  an  action  on  ex-  ^'^^^V^'^-*^ 
press  contract;  that  the  judgment  was  duly  docketed  with  the  ^'"^I'^V"^^ 
clerk  of  said  court  in  November  following,  and  execution  duly  ^"^V^^ 
issued  thereon,  on  which  the  sheriff  made  return  of  nulla  bona;  ^^X^.*^^ 
that  the  judgment  remained  wholly  unsatisfied  at  the  commence-   X.~o^  Z^ 
ment  of  this  action ;  that  said  defendant  George  D.  Dousman  •^'•^^-^'c^— ^ 
had  a  considerable  amount  of  notes,  due  bills,  bonds  and  mort-  '^'^^'^^^ 
gages,  contracts,  accounts,  money,  legal   and    equitable    debts,  ^^?5"a"^*^  ^ 
claims  and  demands  due  him  from    different    persons    (whose  ^^£^J^ 
names  were  to  the  plaintiff  unknown),  and  that  he  had  goods,  ^^^^^'^^''V^ 
chattels,  lands,  tenements,  lea.sehold  interests  in  real  estate,  etc.[ 
either  in  his  possession  or  held  in  trust  for  him,  which  plaintiff 


324  PARTIES   TO   ACTIONS.  [ClIAP.   II. 

was  unable  to  roach  by  execution,  and  which  ought  to  bo  appro- 
priated to  the  payment  of  his  judgment;  which  property  plain- 
tiff  feared  said  defendant  would  make  away  with  or  place  be- 
3'ond  the  reach  of  the  court,  unless  restrained  by  injunction. 
The  complaint  further  avers  that  at  the  time  of  contracting  the 
debt  on  which  said  judgment  was  founded,  and  on  the  1st  of 
May,  1861,  said  George  D.  Dousman  was  the  owner  of  certain 
described  real  estate  in  JNIilwaukee  county;  that  on  the  day  last 
mentioned,  he  conveyed  certain  specified  portions  of  said  real 
estate  to  his  son  Henry  I\I.  Dousman  without  any  consideration; 
that  on  the  10th  of  the  same  month,  said  George  D.  and  his 
wife,  Martha  A.  Dousman,  conveyed  by  warranty  deed  to  said 
Henry  M.  Dousman,  certain  other  specified  parts  of  said  real 
estate,  certain  of  which  were  occupied  by  George  D.  Dousman 
and  his  wife  as  a  homestead;  that  on  the  same  day  Henry  M. 
Dousman  conveyed  the  same  property  by  wai-ranty  deed  back  to 
said  JMartha  A.  Dousman;  that  said  conveyances  from  George 
D.  to  Henry  M.  and  from  Henry  M.  to  Martha  A.,  were  all  with- 
out consideration,  and  were  made  in  fraud  of  the  rights  of 
plaintiff:  as  creditor;  and  that  the  real  property  so  conveyed 
constituted  at  the  time  of  such  conveyance,  all  the  property  of 
value  belonging  to  said  George  D.  out  of  which  plaintiff  could 
make  the  amount  of  his  judgment  aforesaid;  that  said  Henry 
M.  and  Martha  A.  well  knew  the  fraudulent  intent  of  George 
D.  in  making  said  conveyances,  and  that  the  property  so  con- 
veyed ought  to  bo  appropriated  toward  the  payment  of  plain- 
tiff's said  judgment.  Judgment  is  therefore  demanded,  that  a 
receiver  of  all  the  property  and  effects  of  George  D.  Dousman 
be  appointed  by  the  court ;  that  said  George  D.  might  be  direct- 
ed to  assign  and  transfer  to  such  receiver,  upon  oath,  under  the 
direction  of  a  master  of  the  court,  all  his  property,  equitable 
interests,  things  in  action,  money  and  effects,  and  all  the  books 
and  papers  relating  thereto,  and  the  evidences  thereof ;  that  out 
of  said  money,  etc.,  plaintiffs  might  have  satisfaction  of  said 
judgment ;  that  said  George  D.,  his  attorneys,  etc.,  might  be  en- 
joined from  collecting,  selling,  etc.,  or  in  any  manner  using, 
encumbering  or  disposing  of,  any  demands  due  him,  or  any  real 
or  personal  estate,  whether  in  his  own  possession  and  held  in 
his  own  name,  or  held  by  some  other  person  for  his  use;  that 
the  defendants  Henry  M.  and  Martha  A.  Dousman  be  restrained, 
until  the  further  order  of  the  court,  from  in  any  manner  dis-. 
posing  of  the  lands  conveyed  to  them  as  hereinbefore  stated; 


Sec.  3.]  winslow  v.  dousman.  325 

that  said  receiver  be  ordered  to  take  possession  of  and  to  sell 
all  the  property  of  George  D.  Dousman  (except  so  much  of  the 
real  estate  conveyed  as  above  described  as  was  occupied  by  him 
for  a  homestead),  or  so  much  thereof  as  might  be  necessary, 
and  apply  the  proceeds  to  the  payment  of  plaintiff's  said  judg- 
ment, with  the  costs  and  charges  of  thLs  suit,  or  that  the  con- 
veyances above  described  be  adjudged  fraudulent  and  void, 
and  the  property  be  subjected  to  sale  on  execution  to  satisfy 
said  judgment. 

The  defendant  Martha  A.  Dousman  demurred  to  the  com- 
plaint on  the  grounds  that  Henry  ^I.  Dousman  was  improperly 
joined  as  defendant  therein ;  that  several  causes  of  action  were 
improperly  united,  which  did  not  all  of  them  affect  all  the  par- 
ties, and  which  were  not  separately  stated;  and  that  the  facts 
stated  did  not  constitute  a  cause  of  action  against  her.  The 
demurrer  was  overruled,  and  said  defendant  appealed. 

By  the  Court,  Cole,  J.  We  have  no  doubt  that  the  legisla- 
tur£  by  the  passage  of  chapter  303,  Laws  of  1860,  intended  to 
restore  the  remedy  by  creditor's  bill  substantially  as  it  had 
^[sted_ under  chapter  84,  R.  S.  1849.  The  law  of  1860  was 
passed  immediately  upon  the  decision  in  Graham  v.  LaCros.se  & 
:^Iilwaukee  R.  R.  Co.,  10  Wis.,  459,  being  announced,  wherein 
it  was  held  that  the  remedy  by  creditor's  bill,  as  it  had  there- 
tofore existed,  had  been  superseded  by  the  supplementai-y  pro- 
ceeding under  the  code ;  and  the  manifest  object  of  the  act  was 
to  restore  the  former  remedy.  No  other  conclusion  is  adniLssible 
in  view  of  the  history  of  legislation  upon  this  subject.  And  I 
am  confident  that  in  some  unreported  case,  the  title  of  which  I 
am  unable  to  recall,  this  precise  point  has  already  been  decided 
by  this  court.  However  this  may  be,  the  language  used  in  the 
first  section  of  the  law  of  1860  is  almost  identical  with  that 
employed  in  section  7,  ch.  84,  R.  S.  1849,  and  a  clearer  ca.se  of 
an  intention  to  restore  the  former  remedy  can  hardly  be  pre- 
sented. The  point,  therefore,  that  the  remedy  given  by  ch.  303 
is  something  different  in  its  scope  and  purpose  from  the  old 
remedy  by  creditor's  bill,  cannot  be  successfully  maintained. 

The  question  then  arises,  is  the  complaint  in  this  case  good 
under  the  old  practice?  The  principal  objection  taken  to  the 
complaint  by  the  appellant  is,  that  it  professes  to  set  out  three 
causes  of  action  of  distinct  natures,  against  three  defendants 
not  connected  in  interest.  It  is  argued  that  the  complaint  states 
one  cause  of  action  against  George  D.  Dousman,  in  the  nature 


/ML 


326  PARTIES  TO   ACTIONS.  [ClIAP.   11. 

of  a  general  creditor's  suit  under  chapter  303,  Laws  of  1860; 
another  against  George  D.  and  Tlonrj-  IVI.  Dousman,  to  have 
the  conveyance  of  lot  1,  block  19^  declared  void  as  to  creditors, 
and  subject  the  property  to  the  payment  of  the  judgment  men- 
tioned in  the  complaint ;  and  a  third  against  George  D.  and 
Martha  A.  Dousman,  to  have  another  conveyance  of  other  real 
estate  likewise  declared  void  as  to  creditors,  and  subject  that 
to  the  payment  of  the  same  judgment.     The  object  of  the  suit 
then  is,  to  reach  property  which  the  judgment  debtor  George  D. 
Dousman  has  fraudulently  conveyed  to  his  son  Henry  M.,  and 
a  portion  of  which  the  latter  conveyed  to  his  mother  Martha  A., 
wife  of  George  D.,  for  the  purpose  of  placing  it    beyond    the 
reach  of  creditors.    The  claim  against  all  is  of  the  same  nature, 
that  all  the  defendants  have  combined  and  acted  in  concert  in 
these  fraudulent  transactions,,  and  ''all  have  a  common  inter- 
^^       est  centering  in  the  point  in  issue  in  the  cause."    So  that,  while 
^Z;.o>:^«w^>A.  l^ejitle  to  one  piece  of  property  is  in  one  defendant,  and  the^ 
.s^q^^Vju^a,  title  to  some  otherclistinct  pioce  in  anothei*  defendant,  yet  these 
,.^ca.  cK-aiiL      vanous  titles  were  taken  and  are  now  held  for  a  common  pur-L 
'^  ^C^^i^n^   pose,  and  to  accomplish  th*  sum.    fiaudulent  en^.    AH  are  priyyi\ 
^^^|^[^~^   to  an^  have  been  concerned  in  acts  tending  to  the  samn  illegal 
^^-j^^^j.^^    result.    The  matters  are  not  distinct,  but  are,  in  truth,  all  con- 
5^^_j_,L^^,^.v^     nected  with  the  same  fraudulent  transaction,  in  which  all  the 
^yrj-.,^,,^,^.,^     defendants  have  participated.    Where  this  is  the  relation  of  the 
(j,^,.^!,^  oiojo--^  defendants,  it  has  been  held  that  they  may  be  joined  in  the 
v^^  '^^^■43^^^'-  same  suit.    In  the  case  of  Fellows  v.  Fellows,  4  Cowen,  682,  this 
whole  subject  in  regard  to  multifariousness  in  a  creditor's  bill 
is  most  ably  discussed,  and  the  authorities  reviewed.    The  rule 
deduced  from  the  cases  was,  that  "where  several  persons,  al- 
though unconnected  with  each  other,  are  made  defendants,  a 
demurrer  will  not  lie  if  they  have  a  common  interest  centering 
in  the  point  in  issue  in  the  cause."  p.  700.    The  allegations  in 
this  case  bring  the  case  fully  within  the  reach  of  that  principle. 
Here  the  defendants  were  connected  in  the  same  purpose,  and 
have  a  common  interest  in  the  point  in  issue.    We^o  not  think 
there  is  any  improper  joinder  of  defendants,  or  of  causes  of  ac- 
tion, in  the  complaint. 

The  order  of  the  circuit  court,  overruling  the  demurrer,  is 
affirmed. 


Sec.  3.]  hillman  v.  newington.  327 

HILL^IAN  V.  NEWINGTON. 
57  Cal.  56.     [1880.] 

Sharpstein,  J. :     The  respondent  Hillman  brought  an  action  fij,^^  ;,v>-  s^ 
against  eight  defendants,  the  appellants  herein,  and  alleged  that  ^  ,vx>^5;*.«»^ 
ht;  was  entitled,  by  virtue  of  a  prior    appropriation,    to    1,600  xj.,^  /vj.^sjjuvji 
inches  of  the  water  flowing  in  a  stream  known  as  Willow  Creek,  AaJ^.  "yx^vv. 
and  that  the  appellants  diverted  the  waters  of  said  creek  from  J^^^C^jTN  '^ 
the  natural  channel  thereof,  so  as  to  prevent  them  from  flowing  ,,^;,j.,^3:^^^^ 
into  the  plaintiff's  ditches,  and  thereby  deprived  him  of  the  «^,otjji,^    v<)vr 
water  to  which  he  was  entitled.     He  further  alleged,  that  the  -^^b*-^^.  a>-^ 
defendants  threatened,  and  intended  unless  restrained  by  an  -\?^  ^^'^--^» 
order  of  the  court,  to  continue  said  diversion  and  deprivation,  jx-V-o^va.  >f^ 
and  prayed  that  they  be  enjoined  from  so  doing.     There  are 
other  allegations  of  damages,  and  a  demand  of  judgment  there- 
for.    Most  of  the  material  allegations  of    the    complaint    are 
specifically  denied  by  the  defendants.     They  first  "deny  that 
they  have  any  joint  interest  in  the  subject  matter  of  this  ac- 
tion, or  that  they  have  jointly  done  any  act  or  thing  mentioned 
in  the  complaint;  or  that  they  are  jointly  liable  to  the  plaintiff 
in  any  matter  or  thing  connected  with  or  growing  out  of  the 
subject  matter  of  the  action,  either  of  the  matters  or  things 
mentioned  or  set  out  in  the  complaint,  or  of  the  matters  here- 
after mentioned  and  set  out  in  this  answer." 

"And  the  defendants  aver,  that  their  rights  and  interests  in 
all  matters  connected  with  the  subject  matter  of  this  action  are 
separate  and  independent  of  each  other,  and  that  for  these  rea- 
sons they  are  improperly  joined  as  defendants  in  this  action." 

Afterwards  they  allege,  that  each  of  the  defendants  is  the 
owner  and  in  the  actual  possession  of  a  separate  and  distinct 
tract  of  land;  and  that  each  of  them  has,  without  any  connec- 
tion with  any  other,  diverted  a  distinct  and  separate  part  of  the 
water  of  said  creek  for  his  individual  use.  In  other  words,  that 
they  have  acted  severally  and  not  jointly,  in  the  premises. 

The  court  found,  that  the  right  of  the  plaintiff  to  400  inches 
of  the  waters  of  said  creek,  measured  under  a  four  inch  pressure, 
were  prior  and  paramount  to  the  rights  of  the  defendants,  or 
any  of  them,  in  said  waters;  and  that  the  defendants  had  sev- 
erally, and  not  in  concert,  diverted  said  waters  to  such  an  extent 
that  said  400  inches  "did  not  pass  down  to  the  heads  of  plain- 
tiff's ditches."    The  judgment  of  the  court  is,  that  the  defend- 


328  PARTIES  TO   ACTIONS.  [ChaP.   II. 

ants  be  perpetually  enjoined  from  "diverting:  said  waters,  or 
any  part  of  them,  from  their  natural  channel,  during:  the  months 
of  April,  May  and  June  of  each  year,  to  such  an  extent  as  that 
400  inches  of  water,  measured  under  a  four-inch  pressure,  shall 
not  pass  down  the  channel  of  Willow  Creek  below  the  head  of 
the  defendant  Newington 's  ditch  and  to  the  head  of  the  plain- 
tiff's upper  ditch;"  and  that  the  plaintiff  recover  of  the  de- 
fendants $1  damages,  and  the  costs  of  suit,  taxed  at  $787.91; 
and  that  as  between  the  defendants,  the  costs  and  damag:es 
should  be  apportioned.  From  that  judgment,  the  defendants 
appeal. 

The  point  most  strongly  pressed  upon  our  attention  by  ap- 
pellant's counsel  is,  that  there  is  a  misjoinder  of  parties  de- 
fendant, because  they  did  not  act  jointly  or  in  concert  in  di- 
verting the  plaintiff's  water.  It  does  appear,  however,  that  the 
plaintiff  is  entitled  to  a  certain  quantity  of  water,  of  w^hich  he. 
is  deprived  by  the  defendants.  None  of  them  have  a  right  to 
use  any  of  the  water  of  Willow^  Creek,  unless  there  is  more  than 
four  hundred  inches  flowing  in  it.  If  there  be  more  than  the 
amount  flowing  in  it  at  any  time,  the  plaintiff  has  no  interest 
in  the  surplus.  What  the  respective  rights  of  the  defendants 
may  be  in  it  in  no  wayconcerns  him. 

Tt  if^  not  at  nil  improbable  that  no  one  of  the  defendants  de- 
prives the  plaintiff'  of  the  amountio  w^hich  heisentjtled.     If, 
iiot,  upon  what  ground  could  he  maintain _an_action  agamst  any 
one  of  them,?    If  he  w^ereentitled  to  all  the  w^ater  of  the  creek, 
then  every  person  who  diverted  any"of  it  would  be  liable  to 
.  |v-v^>^<^>w^liini  in  action.     But  he  is  only  entitled   to    a   certain    specific 
V^  y^A^    amount  of  it,  and  if  it  is  only  by  the  joint  action  of  the  de- 
,  ii^^A^siS*^  fendants  that  he  is  deprived  of  that  amount,  it  seems  to  us,  that 
;;j^V  ^         the  wrong  is  committed  by  them  jointly,  because  no  one  of  them 
■^^^^^v  alone  is  guilty  of  any  wrong.    Each  of  them  diverts  some  of  the 

r^'i^^  '  w'ater.  And  the  aggregate  reduces  the  volume  below  the  amount 
^  vN/o  ^^  to  which  the  plaintiff  is  entitled,  although  the  amount  diverted 
,;Oyr^  >-'»«»«Wi,]:)y  anyone  would  not.  It  is  quite  evident,  therefore,  that  wdth- 
-wv**  ^^'^-^ — •  out  unity  or  concert  of  action,  no  wrong  could  be  committed; 
XaJ^  N>^f^^  and  we  think  that  in  such  a  case,  all  who  act  must  be  held  to_ 
I,  o^-^-'^'p^AA^^'act  jointly. 

^v«.   ■*^V^J.  j£  there  be  a  surplus,  the  defendants  can  settle  the  priority 

^llT^^^^^jj,,^^  of  right  to  it  among  themselves.  That  can  in  no  way  affect  the 
j^^XTa^V.  plaintiff's  right  to  the  amount  to  which  he  is  entitled.  It  does 
uj^J(_'^/^       not  seem  to  us  that  the  defendant's  answer,  that  each  one  of 


Sec.  3.]  hillman  v.  newington,  329 

them  is  acting  independently  of  every  other  one,  shows  that 
the  wrong  complained  of  is  not  the  result  of  their  joint  action ; 
and  if  it  does  not,  the  answer  in  that  respect  is  insufficient  to 
constitute  a  defense.  The  case,  so  far  as  we  are  advised,  is  sui 
generis.  No  parallel  case  is  cited  by  either  side.  The  objec- 
tion that  the  judgment  does  not  apportion  the  payment  of  the 
damages  and  costs  equally  between  the  defendants,  can  be  obvia- 
ted by  a  modification  of  the  judgment  in  that  respect.  And  it  is 
ordered  that  it  be  so  modified;  and  with  that  modification  it  is 
affirmed. 

Judgment  affirmed. 

BORDEN  V.  GILBERT, 

13  Wis.  670.     [1861.] 

By  the  Court,  Cole,  J.     This  action  was  commenced  in  No-  q,  -r- 

vember,  1859,  to  foreclose  a  mortgage.    The  mortgage  was  given      i^"'"-*'^'^^-*"''"^ 
by  Gilbert  and  wife  to  their  co-defendant,  Jeremiah  R.  Davis,    '^'-*-*>^  "l^*^ 
to  secure  the  payment  of  two  promissory  notes.     The  complaint    **^  *^^-  "^ 
.states  that  the  notes  and  mortgages  were  assigned  by  Jeremiah   V^^-a-c^L-o^k** 
R.  Davis  to  the  respondent ;  and  that  the  other  defendant,  Jere-  y-*-^-^  «>JUa 
miah  Davis,  for  a  valuable  consideration  expressed  on  the  face  of  ovKk:V^  -tMj^ 
an  instrument  in  writing  signed  by  him,  guaranteed  the  collection  "^^^ — *''*^^V^ 
of  the  notes.     There  was  no  appearance  by  any  of  the  defend-  '^^"'^  ov^^ais^ 
ants,  and  judgment  by  default  was  rendered  for  the  sale  of  the   '^  i^^-cw^. 
mortgaged  premises,  and  also  for  a  personal  judgment  against 
the  mortgagor,  Gilbert,  the    assignor,    Jeremiah    R.,    and    the 
guarantor,  Jeremiah  Davis,  for  any  deficiency  which  might  be 
found  due  after  the  security  was  exhausted.    And  the  question 
arising  upon  the  record  is:     Could  the  guarantor  properly  be 
made  a  party  to  the  suit  for  the  foreclosure  of  the  mortgage, 
and  was  it  regular  to  render  a  personal  judgment  against  him  in 
that  action,  for  any  deficiency  which  might  be  found  due  ?     Or, 
should  the  respondent  first  have  exhausted  his  remedy  upon  the 
notes  and  mortgage  before  he  could  resort  to  his  action  upon  the 
guaranty?    In  the  case  of  Dunkley  v.  Van  Buren.  3  Johns.  Ch. 
R.,  330,  Chancellor  Kent  stated  that  a  party,  on  a  bill  to  fore- 
close a  mortgage,  was  confined  in  his  remedy  to  the  pledge,  and 
that  such  a  suit  was  not  intended  to  act  i)i  personam,  and  he 
therefore  denied  an  application  to  mcorporate  in  the  decree  a 
provision  that  the  mortgagor  pay  any  deficiency  found  due  by  a 


330  PAKtiES  TO   ACTIONS.  [ChaP.   II. 

•jiven  (lay,  or  that  execution  issue  against  his  other  property. 
^jEKvA-c^aT=»>ju-ji  And  it  is  very  obvious  that  if  a  bill  to  foreclose  a  mortgage  had 
<y„/>^  o-  been  understood  at  once  to  give  a  remedy  in  rem  and  in  person- 

»ji^ \^  r.xj,r^  gyfi^  ^]^Q  books  would  not  abound  with  cases  where  the  question 
V^"^*-*^'^*"*"     has  arisen  whether  a  mortgagee  could  proceed  at  law  upon  his 
jlA.    .<A  IhJ*     bond,  at  the  same  time  that  he  was  prosecuting  his  suit  in  equity, 
s^^-o-^^^vv*  c^e.-<^;>-.or  as  to  what  would  be  the  legal  consequences  of  bringing  his 
O-^.  V-&-e>V-«i  action  at  law  after  foreclosure,  since  there  would  have  been  no 
»-«*i^  ^'l^^'vx*;^--  occasion  for  any  such  discussion,  nor  any  necessity  for  any  ac- 
(u>A  fv^.      ^.^^  ^^  ^^^  bond.    Judgment  might  have  been  given  against  the 
tA~-.  >>vwo>      mortgagor  in  the  chancery  suit  at  the  same  time  that  a  decree 
,  X/J>-«  ''^5)-vA  -  was  rendered  for  the  sale  of  the  mortgaged  property.     It  was 
o^  \a^  ""Y^^  undoubtedly  to  obviate  this  difficulty,  and  to  prevent  a  multi- 
plicity of  suits,  that  the  legislature  of  New  York  provided  that 
in  a  suit  to  foreclose  a  mortgage,  the  court  should  have  the 
power  to  decree  and  direct  the  payment  by  the  mortgagor  of 
Yv.o..  so  dfjt^-^^y  balance  of  the  mortgage  debt.    2  N.  Y.  R.  S.  191;  8  Paige, 
SU-<A\joA^     480.     It  was  also  provided  that  if  the  debt  was  secured  by  the 
'VA-A  oAW.r^  obligation  of  any  other  person  besides  the  mortgagor,  such  per- 
r.^.^^^.^^  "^^^      son  might  be  made  a  party  to  the  suit,  and  that  the  court  might 
^  <-.«..^=lX-.     decree  payment  of  the  balance  of  such  debt  remaining  unsatis- 
fied, after  the  sale  of  the  mortgaged  premises,  as  well  against 
such  other  person  as  against  the  mortgagor.     Section  154.     Un- 
der this  section  it  has  been  held,  that  a  mortgagee  who  assigns 
the  mortgage  and  guarantees  the  principal  and  interest,  is  a 
proper  party  to  the  foreclosure  suit.    Bristol  v.  Morgan,  3  Edw. 
Ch.  R.  142;  Leonard  v.  Morris  et  al.,  9  Paige,  90.  And  where 
the  holder  of  the  mortgage  assigned  it  and  covenanted  with  the 
assignee  that  it  was  due  and  collectible,  and  afterwards  took  a 
bond  of  a  third  person  as  security  for  the  mortgage  debt,  it  was 
held  that  the  assignee  was  in  equity  entitled  to  this  security, 
and  that  in  a  suit  by  him  to  foreclose,  the  obligor  was  properly 
joined  as  a  defendant,  in  order  that  a  decree  might  be  made 
against  him  for  any  deficiency  after  the  sale  of  the  property. 
Curtis  et  al.  v.  Tyler  et  al.,  9  Paige  432.    So  when  the  purchaser 
of  a  portion  of  land  mortgaged,  assiimed  the  whole  mortgage, 
it  was  decided  that  the  mortgagor  was  entitled  to  the  benefit  of 
such  agreement,  and  that  it  was  within  the  equity  of  the  statute 
to  give  a  decree  over  for  the  deficiencj^  against  the  third  party 
liable  for  the  payment  of  the  mortgage  debt.     Halsey  v.  Reed, 
9  Paige  446.     See  also  Mann  v.  Cooper,  1    Barb.    (Ch.)    186; 
Stone  v.  Steinbergh,  id.  250;  Bigelow  v.  Bush,  6  Paige  343; 


Sec.  3.]  borden  v.  gilbert.  331 

Vanderkemp  v.  Shelton,  1  Clark's  Ch.  R.  321;  Luce  v.  Hines, 
id.  453. 

Whether   in  some  of  the   decisions  in   the   above   cases  the  q^^^X  vv»  /o^ 
statute  was  not  extended  so  as  to  embrace  cases  not  fairly  com-  pJcsto=*a->  s^ 
ing  within  its  provisions,  we  will  not  stop  to  inquire.    It  is  suf-  n>~  v>ona>«.'wv 
ficient  to  say  that  these  provisions  of  the  N.  Y.  statutes,  which 
were  substantially  incorporated  in  ch.  84,  R.  S.  1849,  have  been 
left  out  of  the  present  revision.  We  are  therefore  to  determine, 
whether,  in  the  absence  of  these  provisions,  it  is  regular  and 
proper  to  make  a  third  person  who  has  jjuaranteed  the  collection 
of  the  mortgage,  a  party  to  the  suit  to  foreclose  the  mortgage. 
We  are  of  the  opinion  that  it  is  not.    The  plain,  obvious  import   ^^i-^^-'^o^^^ 
of  the  guarantor's  contract  is.  that  he  will  pay  the  debt,  pro-  %  a>/vx  ocr^ 
vided,  on  due  diligence,  it  cannot  be  collected  out  of  the  mort-   *\  <k^^j>'-^ 
gagor,  or  made  out  of  the  security.    It  is  not  an  absolute  prom-  ^^-^  ^.n^^r^r^ 
jy  to  pay  in  the  first  instance.    The  respondent  should  exhaust  ^^^^"^j^^J"'"''^ 
his  remedy  against  the  mortgagor  andthe  mortgaged  property.  "^^'^'^''1^^^ 
before  he  can  call  upon_tne_L'-uaranior  ^n  makp  (rnnd  his  (^olT  ^^^^l^  3^ 
tract     The  former  are  the  primary  sources  to  which  he  must  ^  ,jv^  ,v.,.». 
Took"  for  the  payment  of  his  debt.     If  they  fail  or  prove  inade-  o^  ^w*-v^ 
quate,  then  the  guarantor  becomes  liable.     It  was  therefore  ira-  \,,,ow>v-  W 
proper  and  erroneous  to  make  the  guarantor  a  party  to  this  suit, 
and  to  take  a  personal  judgment  against  him,  under  the  allega- 
tions of  the  complaint.     The  respondent  should  first  have  ex- 
haasted  his  remedy  upon  the  notes  and  mortgage,  before  pro- 
ceeding against  the  guarantor,  Jeremiah  Davis. 

The  judgment  of  the  circuit  court  must  bfe  reversed,  and  a 
new  trial  ordered.  ^  ,      .^ 

V"  ^A^     ) 

(b)     Parties  Who  Must  be  Joined. 
BLEDSOE  v.  IRVIN. 
35  Ind.  293.     [1871.] 

BuSKiRK,  J.  The  action  in  the  common  pleas  court  of  Bar- 
tholomew county,  from  which  this  appeal  was  taken,  was  to 
obtain  judgment  on  a  note,  and  to  foreclose  a  mortgage  given  to 
secure  the  same. 

The  only  question  arising  in  the  case  is  upon  the  sustaining  of 
a  demurrer  by  the  court  below  to  the  answer  in  abatement.    The 


332  P^VTiTIES  TO  ACTIONS.  [COAP.   II. 

note  upon  which  the  action  was  brouiu'ht  was  i^'x^ned  as  follows: 
*'L.  S.  Bledsoe,  E.  IT.  Cox  &  Co.,  Samuel  Stuckey." 

The  answer  in  abatement  above  referred  to,  was  as  follows, 
after  entitling  the  cause,  viz.:  "Defendants,  for  answer  in 
abatement  herein,  say  that  plaintiffs  ought  not  to  maintain  said 
action,  because,  they  say  that  the  said  note  in  the  said  declara- 
tion mentioned  (if  any  such  was  made),  was  made  by  one  Eliza- 
beth Kinney  jointly  with  said  defendants,  and  not  by  said  de- 
fendants alone,  and  that  said  Elizabeth  Kinney  is  still  living, 
to-wit,  at  said  county  of  Bartholomew,  State  of  Indiana ;  where- 
fore, because  said  Elizabeth  Kinney  is  not  named  in  said  com- 
plaint, nor  made  a  party  defendant  in  this  action,  they  pray 
judgment  herein  that  said  action  abate. 

(Signed.)  L-  S.  Bledsoe. 

Subscribed  and  sworn  to  March  22d,  1869. 

G.  W.  Richardson,  N.  P. 

To  this  a  demurrer  was  filed,  for  the  alleged  reason  that  it  did 
not  state  facts  sufficient  to  constitute  a  defense.    This  error  we 
think  is  fatal  to  the  judgment  below.     The  note  on  its  face  is  a 
• -^     joint  note.    At  common  law,  all  makers  of  a  joint  contract  must 
^r^\.    have  been  joined  as  partiesdetendants.  and  the  failure  of  plain- 
^*^^^j^         tift'  to  ,pm  amMHiejyas"cause"oFdemurre     if  it  appeared  in  the_ 
^.  complaint,  and  otH^ea  in  abatement  if  it  did  not  so  appean 

Such  was  the  uniform  ruling  of  this  court ;  Bragg  v.  Wetzel,  5 
Blackf.  95;  Dillon  v.  State  Bank,  6  Blackf.  5;  Wilson  v.  State, 
6  Blackf.  212,  and  authorities  cited  in  the  last  two  cases;  Gil- 
man  V.  Rives,  10  Pet.  298.  Nor  has  the  code  changed  the  rule, 
2  G.  &  H.  46,  sec.  18 ;  id.  79,  clause  4,  and  note  thereto. 

Even  if  this  case  were  to  be  considered  as  embraced  within 
the  principle  laid  do^Ti  in  Goodnight  v.  Goar,  30  Ind.  418,  that 
"the  code  seems  to  have  re-enacted  the  rules  which  prevailed 
in  courts  of  equity,  as  to  who  must  join  as  plaintiffs,  and  may 
be  joined  as  defendants,"  still  the  plea  in  abatement  in  this  ac- 
tion, under  equitable  rules,  was  good.     The  answer  was  pleaded 
by  all    the    defendants   who    had    been    summoned,    including 
'^^^''^'^       Stuckey,  whom  the  record  shows  to  have  been  a  surety  on  the 
',^'^^=«*^^'    note.     As  such  he  had  rights  over  against  all  the  other  makers 
^^  ^^^  of  the  note,  in  the  event  of  his  having  anything  to  pay  thereon ; 
"^"^■^^  "^      and  in  all  cases  of  that  character,  it  is  said  to  be  the  rule  in 
equity,  that  all  parties  so  consequentially  liable,  must  be  brought 
before  the  court.     1  Daniel's  Ch.  Pr.  329.     And  in  accordance 


Sec.  3. J  bledsoe  v.  irvin.  333 

with  this  principle,  is  the  decision  of  Hardy  v.  Blazer,  29  Ind. 
226,  and  also  in  Braxton  v.  State,  25  Ind.  82. 

But  it  is  insisted  by  the  appellee,  that  the  ruling  of  the  court  f>  5.,^  ;^  j 
-was  not  erroneous,  for  the  reason  that  the  plea  in  abatement '^-^^'^^  «ssss 
was  defective  in  not  showing  how  and  in  what  manner  Eliza- ^^^^^^^j^^^^^""^ 
beth  Kinney  had  become  a  maker  of  the  said  note.  The  plea  al-v«  i»v^^ 
leged  that  she  was  a  joint  maker  of  the  note,  and  the  demurrer  ^^^.^  ^^y^^^ 
admitted  that  this  is  true.  Pleadings  should  contain  facts  and  "" 
not  evidence.  We  think  the  court  erred  in  sustaining  the  de- 
murrer to  the  plea  in  abatement. 

The  judgment  is  reversed  with  costs;  and  the  cause  is  re- 
manded, with  directions  to  the  court  below  to  overrule  the  de- 
murrer to  the  plea  in  abatement,  and  for  further  proceedings 
not  inconsistent  with  this  opinion. 


\^     '^^■ 


BRADY  V.  BALL. 
14  Ind.  317.     [I860.] 

WoRDEN,  J.     Suit  by  the  appellee  against  the  appellants,  to 
recover  damages  for  injuries  done  by  trespassing  animals.  Ver-  tos^  ^j^n  V 
diet  and  judgment  for  the  plaintiff,  a  new  trial  being  denied.  "V*-"*^  \'^ 
The  material  facts  are  as  follows :     A  lot  of  cattle  belonging  o->^  '<^"-3^  \ 
jointly  to  the  defendants  and  one  Jefferson  D.  Brady  were  be-  "^^^^'^r-^-^a^^^  ^ 
ing  pastured  by  their  owners  in  a  field  belonging  to  one  Stock-  c^-*3t*^  ^'^^ 
ton.     They  broke  through  the  partition  fence  between  the  field '"'^"^  )^^*'''"*~* 
of  Stockton  and  the  premises  of  Robert  Foresman,  and  entered  '^'^^  "^^•^^As^ 
the  latter,  thence  through  the  partition  fence  between  Fores- 
man's  premises  and  the  plaintiff's  wheat  field,  and  thence  into 
his  corn  field,  eating  and  otherwise  destroying  the  plaintiff's 
com  and  wheat. 

At  the  proper  time,  the  defendants  asked  the  court  to  charge 
the  jury  that,  if  they  found  from  the  evidence  that  the  cattle  be 
longed  to  the  defendants  and  Jefferson  D.  Brady,  they  should 
find  for  the  defendants.    This  was  refused  and  exception  taken.  ,     .    . 

This  instruction  was  correctly  refused.  The  action  was  for  a '""^  """^'^"'■^^ 
tort,  and  the  plaintiff  had  his  election  to  sue  all,  or  only  a  ^^X-J^i*^ 
partT^  the  owners  of  the  cattle.  Chit.  PL  86.  Vide,  also,  jv.  o*/^^*^.  ^^ 
Perk.  Pr.  144.  '^o^-A.  1^ 

Judgment  affirmed.       Xsaje-'^jotrv-' 


'^3^*^    ^^VxjvAa," 


334  PARTIES  TO  ACTIONS.  [ClIAP.    11. 

CREED  V.  HARTMAN. 

29  N.  Y.  591.     [1864.] 

The  defendant  was  one  of  a  firm  who  had  contracted  to  build 
a  block  of  houses  on  Third  Avenue  in  the  City  of  New  York. 
The  contractors  made  a  sub-contract  with  one  Brady,  to  make 
the  necessarj'  excavations,  by  digging  the  ground,  blasting 
the  rocks,  etc.  He  was  to  guard  against  accidents  by  proper 
precautions,  and  all  damages  were  to  be  made  good  by  him. 
After  the  sidewalk  was  dug  out  the  same  was  covered  with 
boards,  but  by  whom  does  not  appear.  The  defendant's  fore- 
man was  in  the  habit  of  putting  up  guards  at  evening.  ■Mary 
Creed,  one  of  the  plaintiffs,  in  passing  over  the  platform,  broke 
through  and  fell  into  the  excavation.  She  was  injured,  and  her 
thigh  was  fractured.  The  counsel  for  the  defendant  asked  the 
court  to  charge  that  where  a  party  had  a  license  to  construct  a 
sewer,  and  contracted  it  to  a  third  party,  he  was  not  liable  for 
an  accident  occurring  through  the  negligence  of  such  party. 
This  was  refused;  and  the  court  charged  "if  the  excavation  was 
caused  by  the  party  sued  he  was  responsible  for  not  having  the 
excavation  properly  protected,  although  he  might  not  be  liable 
had  the  accident  occurred  while  the  blasting  was  going  on."  To 
..  this  the  defendant  excepted.     The  defendant  also  moved  for  a 

i*W--«*       non-suit,  upon  the  ground  that  Brady  was  the  party  guilty  of 
5j-^^  negligence,  if  any;  that  the  plaintiff  was  guilty  of  negligence, 

^^^  y^^        and  that  the  partner  of  the  defendant  was  a  necessary  party. 
,.5)^  o-o  itVt   This  motion  was  denied.     The  jury  found  a    verdict    for    the 
plaintiff',  and  the  judgment  thereon  was  affirmed  by  the  general 
term. 

Ingraham,  J.  There  was  not  sufficient  evidence  of  negligence 
on  the  part  of  the  plaintiff  to  warrant  the  court  to  take  the  case 
from  the  jury.  It  did  not  appear  that  she  had  any  reason  to 
suppose  the  boards  placed  for  people  to  walk  over  were  not  suf- 
ficient. On  the  contrary,  she  saw  others  passing,  and,  as  it  was 
tisual  to  make  such  bridges  to  pass  over  excavations  in  the  side- 
walks, she  had  no  reason  to  suppose  there  was  any  difference  in 
the  present  case.  It  is  only  where  the  negligence  is  clearly 
proved,  that  the  court  is  warranted  in  dismissing  the  complaint. 
The  defendant  wag  one  of  a  firm  who  had  the  contract  for  erect- 
ing the  buildings.  Both  of  the  parties  were  alike  guilty  of  neg- 
ligence, and  both  might  have  been  sued  for  such  negligence,  but 


Sec.  3.]  creed  v.  hartman. 

each  of  them  was  equally  liable,  if  any   liability    existed;    and 

there  is  no  rule  which  makes  both  parties  necessary  parties  to 

an  action  of  this  character.     There  was  a  separate  liability  as  ViuA:^  .t>  x^ 

well  as  a  .joint  one,  and  the  plaintiff  might,  at  his  election,  sue  ^^  ^5I;^s^ 

both  or  either  of  them.     (14  John.  426.)     *     *     * 

Seldon,  J.  ~The~verdict  of  the  jury,  under  the  appropriate 
charge  of  the  court  on  the  subject,  is  an  answer  to  the  position 
of  the  defendant's  counsel  that  the  plaintiff  was  guilty  of  neg^ 
ligence.  If  the  question  were  an  open  one,  however,  it  would 
be  very  difficult  to  find  in  the  evidence  anything  to  justify  a 
different  verdict. 

There  is  no  w^ell-grounded  reason  for  questioning  the  defend- 
ant's liability  in  this  case,  under  the  rule  laid  down  in  the  case 
of  Congreve  v.  Smith  (18  N.  Y.  79),  that  "persons  who,  with- 
out special  authority,  make  or  continue  a  covered  excavation  in 
a  public  street  or  highway,  for  a  private  purpose,  should  be  re- 
sponsible for  all  injuries  to  individuals  resulting  from  the  street 
or  highway  being  thereby  less  safe  for  its  appropriate  use,  there 
being  no  negligence  by  the  parties  injured."  It  cannot  be  ma- 
terial whether  the  excavation  was  a  covered  or  an  open  one, 
where  it  was  made  without  authority,  and  the  party  injured  was 
free  from  fault.     ♦     ♦     * 

The  ground  upon  which  I  have  placed  the  liability  of  the  de- 
fendant, furnishes  an  answer  to  the  objection,  that  his  partner 
(Eberspacher)  should  also  have  been  made  a  defendant.  The, 
making  of  the  excavation  w-ithout  license^_was  a  tort  on  the  part 
of  boS~the"^defendanr  and  Eberspacher,"and  the  liability  for 
torts  committed  by  more  than  one  person  is  always  several  as 
"well  as  joint.  (Low  v.  MumTord,  14  Johns.  426.)  I  doubt 
whether  the  rule  would  be  different  if  the  liability  of  the  de- 
fendant should  be  held  to  depend  upon  the  negligence  of  the 
common  agent  of  him  and  his  partner.  (Champion  v.  Bosrwick, 
18  Wend.  185-6.)     *     *     * 

All  the  other  judges  concurring,  judgment  affirmed. 


336  PARTIES  TO  ACTIONS.  [CllAP.    II. 

BAUM  V.  MULLEN. 

47  N.  Y.  577.     [1872.] 

^oov^  «-«yo-^'-'^-*SL  Appeal  from  the  judgment  of  the  general  term  of  the  supreme 
.  X^w  \r^Lr*A-  court  in  the  second  judicial  department,  affirming  judgment  en- 
>>*-'ai'»-«^"f-^  tered  upon  verdict  in  favor  of  plaintiffs,  affirming  order  deny- 
kju  o-J>^<*^  ing  motion  for  a  new  trial. 

,  ♦.•^^y^'cfc  •  -pjjig  action  was  brought  to  recover  damages  for  alleged  fraud 

in  the  sale  of  land.  The  representations  claimed  to  be  fraudu- 
lent were  made  by  the  husband  of  the  defendant,  he  acting  as 
her  agent  in  the  sale  of  the  premises,  the  title  of  which  was  in 
her.  At  the  close  of  the  evidence,  defendant's  counsel  moved 
for  dismissal  of  the  complaint,  on  the  ground  that  the  action 
could  not  be  maintained  against  defendant  without  joining  her 
husband  as  defendant.  ]\Iotion  denied  and  defendant  excepted. 
Church,  Ch.  J.  The  only  question  presented  for  our  de- 
cision is  whether  the  joinder  of  the  husband  with  the  wife  is 
necessary  in  an  action  for  fraud  in  a  contract  for  the  sale  of 
real  estate  of  the  latter  made  by  the  former  as  the  agent  of  his 
wife.  We  are  of  the  opinion  that  such  joinder  is  not  necessary. 
The  statutes  of  1860  and  1862  provide  that  "the  wife  may  sue 
and  be  sued  in  all  matters  having  relation  to  her  sole  and  sep- 
arate property,  the  same  as  if  she  were  sole,"  and  judgment  may 
[^,^5^3r">-^S:*^lbe  enforced  against  her  separate  property  as  if  she  were  sole. 
(Laws  of  1862,  p.  344.) 

The  counsel  for  the  appellant  claims  that  at  common  law  the 
husband  is  liable  for  the  torts  of  the  wife,  and  that  this  act  has 
never  been  changed.  This  position  is  correct.  The  statute  has 
not  altered  the  common  law  liability  of  the  husband  for  the  mere 
^ersonaHorts  of  the  wife,  but  when  such  torts  are  committed  in 
the  management  and  control  of  her  separate  property,  the  rule 
is  changed,  and  she  is  liable  the  same  as  if  she  was  unmarried, 
and  can  be  sued  in  the  same  manner. 

In  this  case  it  is  found  that  by  the  fraudulent  representations 
of  the  husband,  acting  as  the  agent  of  the  wife  in  contracting 
for  the  sale  of  her  property,  $200  was  received,  which  it  is  pre- 
sumed was  paid  to  her.  She  is  responsible  for  the  fraud  and 
has  had  the  avails  of  it.  The  action  is  clearly  for  "matters  hav- 
ing relation  to  her  sole  and  separate  property. ' ' 

They  relate  to  the  management  and  disposition  of  her  prop- 
erty.    The  circumstance  that  the  fraud  was  committed  by  her 


Sec.  3.]  baum  v.  mullen. 


337 


£JOw 


husband,  acting  as  her  agent,  does  not  impair  her  liability.  She 
had^  right  to  employ  her  husband  as  agent^  and,  while  aet"in7 
as^ch  |nrelationJo  her  separate  property,  her  liability  for  his 
actsJs_^F^cIsely  the  same  as  it  would  be  for  the  liability  of  anv 
other_agent.  The  statute  has  in  a  great  degree  abrogated  the')  '^iSLiSi;:;^^ 
respective  common  law  rights,  obligations  and  duties  of  husband  \^*-f^ 
and  wife  growing  out  of  the  marriage  relation,  as  it  respects  V^^ 
property  which  the  wife  is  permitted  to  own.  As  to  such  prop-  \^Xx^ 
erty,  she  is  to  be  treated  as  unmarried.  All  the  rights  of  an  un-  '^'■*^^ 
married  woman  are  conferred  upon  her,  and  all  correlative  ob- 
ligations are  imposed. 

The  statute  has  decreed  equality  of  rights,  and  equality  of 
obligations  and  duties,  and  courts  have  no  alternative  but  to 
enforce  both.     The  wife  is  liable  in  the  same  manner  and  to   \<XA,sciL  ^ 
the  same  extent  forjrauds  or  torts  committed  in  the  manage-   v>-«-<»  w^-> 
ment  of  her  property,  as  she  is  upon  contracts  relating  to  it.    w^-Aa-. , 
and  just  as  liable  for  fraudulent  representations  upon  the  sale    cjLo-' 
2I-  it  as  upon  a  covenant  for  quiet  enjoyment.  (>,^ 

In  Rowe  v.  Smith  (45  N.  Y.  230),  this  court  held  that  the 
wife  was  liable  for  trespass  committed  by  her  hogs  and  cattle 
escaping  from  her  lands  upon  the  premises  of  another,  and  the 
same  principle  is  applicable  to  this  case.  But  the  principle  here 
decided  does  not  affect  the  common  law  liability  of  the  husband 
for  the  mere  personal  torts  of  the  wife  disconnected  from  the 
management  of  her  separate  property. 

The  judgment  must  be  affirmed  with  costs. 


FLESH  V.  LINDSAY. 
ll.j  Mo.  1.     [1893.] 

Action  against  Jane  Lindsay  and  husband  for  damages  to  the  v^CA^  ^  ^ 
plaintiffs  building,  alleged  to  have  been  caused  by  the  negli-  Ov.  "Wva*.  ^ 
gence  of  IMrs.  Lindsay  in  making  some  alterations  of  her  own  ^s^^^  0-^0.^ 
building.  There  was  a  verdict  and  judgment  against  the  de- ^^TJ;^^^^^^ 
fendant  Jane  Lindsay  alone,  from  which  she  appealed.  rv^joc  v^i5:ss 

Burgess,  J.*  t»,-vSu,  u^  cj 

III.      Tn    no  t^vpnt.  ^  ]Vfr<;f,   Tnnri»ay  ainna  fn  Ka  hplrl  ^\f^Yl]p   fcf    >^*^-^>ifc-W^  ^ 

*Part  of  the  opinion,  dealing  with  the  instructions,  is  omitted. 
22 


338  PARTIES  TO  ACTIONS.  [ChaP.    II. 

the  damages  sued  for,  but  she  is  liable  in  conjunction  with  her 
husband. 

IV.  For  the  error  of  the  court  in  giving  instructions  for 
plaintiff  as  herein  indicated,  and  in  rendering  judgment  against 
Mrs.  Lindsay  and  not  against  her  husband,  the  cause  will  be 
reversed  and  remanded  to  be  proceeded  with  in  accordance  with 
the  views  herein  expressed.  Judgment  reversed. 

V-^ 

AGARD  V.  VALENCIA. 

39  Cal.  292.      [1870.] 

v^  This  was  an  appeal  from  a  final  judgment  in  favor  of  the  de- 

«..<^!!X^^'ww-'fendants,  rendered  upon  a  demurrer  to  the  amended  complaint. 

5^ .  The  action  was  to  compel  specific   performance  of  a  contract 

with  Valencia  to  convey  an  undivided  interest  in  real  estate.  It 

was  alleged  that  Valencia  had  conveyed  to  each  of  her  children, 

by  deed  of  gift,  four  hundred  acres  of  land,  amounting  in  the 

aggregate  thirty-two  hundred  acres,  and  fraudulently  conveyed 

the  whole  of  the  remainder,  except  four  hundred  acres,  to  the 

^  defendants,  Blum  and  Brown,  who  took  the  conveyance  with 

notice  of  the  plaintiff's    equities.      The    action    was    brought 

against  Valencia,  Blum  and  Brown. 

Crockett,  J. 

The  third  ground  of  demurrer,  is  also  well  taken.     The  chil- 
dren of  Valencia  ought  to  have  been  made  parties  defendant 
The  plaintiff  is  entitled  on  his  own  showing,  only  to  an  undi- 
vided interest  in  the  whole  tract,  and  not  to  any  specific  parcel. 
He  has  not  the  right  to  elect  to  take  his  share  of  the  whole  out 
of  that  part  which  has  been  conveyed  to  these  defendants  to  the 
exclusion  of  the  portion  conveyed  to  the  children;  nor  has  he 
the  right,  in  a  separate  action  against  Blum  and  Brown,  to  com- 
pel them  to  convey  to  him  three-tenths,  undivided,  of  the  inter- 
est which  they  acquired  from  Valencia,  leaving  him  to  assert 
his  right  against  the  children  in   another  action.     There  was_ 
^^v.^^ys5j-»-r>    '  but  one  contract  and  one  cause_of_  a^tionjanderjt^  and  this  can- 
^^^^^'^^^^        not  be  split  up  in  severalactions  against  grantees,  claiming  un- 
'^^  J!!!jU^  dpT'j>_pomTrinTi  grantor.    It  must  all  be  settled  in  one  action,  so 
jj^;j^.A.,j^  that  the  rights  of  all  the  parties  can  be  adjusted  in  one  pro- 
^|*^X/.^  ceeding.     The  children  ought    therefore,    to    have    been    made 

vjt  ^\  ^>^        parties.     *     *     *  Judgment  affirmed. 


Sec.  3.]  pillow  v.  sentelle.  339 

PILLOW  V.   SENTELLE. 
39  Ark.,  61.     [1882.] 

Eakin,  J.  This  suit  was  brought  by  Sentelle  &  Co.,  to  fore- 
close a  mortgage  on  land  executed  on  the  seventeenth  of  Jan- 
uary, 1876,  by  Gideon  J.  Pillow,  to  secure  a  note  to  complain- 
ant, for  $5,531.68,  due  the  fifteenth  of  December  following.  O-tXi^vjv^  ^0. 

In  the  title  of  the  case,  Mrs.  Pillow  is  described  as  the  widow  \^i>-^j>-<y<r^ 
and  administratrix  of  the  mortgagor.  Fourteen  others  are  ^^-'^^y,^^-^^^^  "^ 
named  as  defendants,  but  neither  their  character  nor  interests  ^T^T^^^T^' 
in  the  subject  matter,  are  disclosed  by  the  bill.  Most  probably  '^\^^t^^Jwai 
they  were  sons  and  daughters  of  the  mortgagor,  with  their  wives  ^^jq^Jj,;;^^  ^T^ 
or  husbands,  but  we  cannot  know  this.  They  are  not  described 
as  heirs.     *     *     * 

It  is  impossible  to  gather  from  the  transcript  correct  informa- 
tion as  to  who  were  Gideon  J.  Pillow's  heirs.  This  kind  of  in- 
advertence is  not  uncommon,  and  results  generally  from  the  fact 
that  the  attorneys  are  themselves  so  well  advised  of  the  rela- 
tions of  well  known  parties,  that  they  do  not  require  allegations 
as  to  that  from  their  opponents,  or  overlook  the  omission.  No 
evil  generally  results  from  that  in  the  court  below,  where  all 
proper  matters  may  be  orally  conceded  in  argument,  but  it  is 
very  embarrassing  to  an  appellate  court,  desiring  to  do  sub- 
.stantial  justice,  and  still  confined  to  the  transcript. 

But  the  heirs  were  necessary  parties,  and,  as  the  transcript 
appears,  it  wa.s  not  proper,  at  that  stage,  for  the  court  to  hear 
the  cause,  and  pronounce  any  final  decree.  It  was  fruitless^ 
since,  save  a  mere  dower  interest  of  Mrs.  Pillow,  if  she  had  any. 
nothing  could  be  affected  by  its  execution,  and  it  would  cloud 
the  title  of  the  heirs,  and  embarrass  their  right  of  redemption. 
"When  ^  determination  of  the  controversy  between  the  parties]  ^ 

before  the  court  cannot  be  made  without  the  presence  of  other  ^'•^  "^^^X^ 
parties,  the  court  must  order  them  to  be  brought  in."  Gantt's  '^'"*-  >-*^X^^^ 
Digest,  section  4481.     The  decree  was  premature,  and,  for  that  ^^'^^  ^'s^'^-'-sl, 
reason,  it  would  not  be  proper  here,  and  now,  to  consider  the 
merits  of  the  controversy  between  the  original  complainants  and 
Mrs.  Pillow.    The  heirs  have  a  substantial  interest  in  that,  and 
must  first^be  heard  in  the  court  of  original  jurisdiction.     Al- 
though^ they  would  not  be  bound  by  the  decree,  yet,  upon  any 
effort  to  disturb  their  title,  precisely  the  same  controversy,  as  to 
all  or  some  of  the  points,  would  have  to  be  renewed.    The  equity 


340 


PARTIES  TO  ACTIONS. 


[Chap.  II. 


practice  would  fail  in  its  chief  excel k'lice,  that  wherein  it  niu.st 
especially  cummends  itself^  if  it  did  justice  by  piecemeal.     Tts" 
pride  is  to  bring  in  all  parties  interested  in  the  subject  matter 
of  the  controversy,  and  to  adjust  all  rights  at  once,  and,  so  far 
as  may  be,  permanently. 

Reverse  the  decree  and  remand  the  cause,  with  leave  to  all 
parties  to  reform  their  pleading's,  and  to  bring  in  all  parties  in 
interest,  in  accordance  with  this  opinion  and  the  principles  and 
practice  in  equity.*  . 


,,  oJlV: 


WOODWARD  v.  McCONNAUGHEY. 

106  Fed.,    [C.  C.  A.]    758.     \1901.] 

Gilbert,  Circuit  Judge.  The  appellants  were  the  complain- 
ants in  a  bill  brought  to  set  aside  a  tax  title  to  their  property 
acquired  by  J.  W.  IMcConnaughey,  one  of  the  appellees,  and  to 
rescind  and  set  aside  a  quitclaim  deed  of  said  property  made  to 
the  said  McConnaughey  by  the  appellants,  on  the  ground  that 
it  was  made  under  mistake,  and  induced  by  fraud.  The  de- 
fendants demurred  to  the  bill  upon  several  grounds,  one  of 
which  was  that  it  appeared  from  the  allegations  of  the  bill  that 
one  Isabel  C.  Jones  was  a  necessary  party  to  the  suit,  but  was 
not  made  a  party  thereto.  The  demurrer  was  sustained,  and 
at  the  same  time  the  complainants  were  given  leave  to  amend 
the  bill  within  30  days  thereafter.  They  failed  to  amend  within 
the  time  specified,  and  thereupon  a  decree  was  entered  dismiss- 
ing the  bill.  From  that  decree  the  present  appeal  is  taken. 
*     *     * 

Concerning  the  interest  of  Isabel  C.  Jones  in  the  subject  of 


^    \jjr\JL€Ji,>=^*-'^ 


*In  Missouri,  the  mortgagee  has  his  election  to  bring  an  equitable 
action  to  foreclose,  in  which  event  the  general  equity  rules  as  to 
parties  prevail,  or  to  bring  his  actions  under  the  statute  against  the 
statutory  parties  only.     Thayer  v.  Campbell,  9  Mo.  280. 

In  case  of  the  death  of  the  mortgagor,  neither  the  heirs  nor  their 
grantees  are  necessary  or  proper  parties  in  the  statutory  action,  but 
will  be  bound  by  the  judgment  against  the  personal  representative. 
Tierney  v.  Spiva,  97  Mo.  98. 

In  the  statutory  action  the  plaintiff  may  have  a  personal  judgment 
for  the  debt,  but  in  the  equitable  action  no  personal  judgment  can  be 
rendered.     Smith  v.  Moore,  53  Mo.  App.  525. 


Sec.  3.]  wooDWiVRo  v.   m 'connaughey.  341 

the   controversy,   the   bill   alleges   that   prior  to   February   24, 
1895,  certain  mechanics'  liens,  amounting  to  $8,384,  were  filed 
against  the  property  in  litigation,  and  that  on  that  date  suit 
was  brought  to  foreclose  the  same;  that  a  decree  foreclosing 
said  liens  was  rendered,  and  that  the  decree  and  all  rights  there- 
under were  purchased  by  and  assigned  to  Isabel  C.  Jones ;  and 
that  thereafter,  in  pursuance  of  said  decree,  the  property  was 
sold  and  conveyed  to  the  said  Isabel  C.  Jones.     The  appellants  ©jl/,^,^^^^    ^ 
contend  that  Isabel  C.  Jones  is  shown  to  be  an  unnecessary  Ov/..oJc  <v<»  rvx 
party  to  the  suit  by  other  averments  of  the  bill,  which  allege  rwW  <».-vn»- 
that  the  money  to  purchase  said  decree  was  furnished  her  by  \oJ^-<^^'^-<^-^^ 
J.  W.  McConnaughey,  and  that  she  was  a  nominal  purchaser  'Tf^^^f^ 
only,  and  was  in  reality  acting  as  trustee  for  McConnaughey,  duuL.      rJ^-^ 
and  that  the  transaction  was  carried  on  in  her  name  solely  for  ~^v-**.'  *^-^  "\^3 
the  purpose  of  concealing  the  facts,  and  that  McConnaughey 
is  a  trustee  for  the  appellants  under  said  decree,  execution,  and 
sale.     These  allegations  do  not  change  the  aspect  of  the  case  so 
far  as  it  concerns  the  necessity  of  making  Isabel  C.  Jones  a 
party.    The  complainants  cannot  aver  that  the  title  to  the  prq£-  5^,,,^j«c  - W^  ^ 
erty  whichlTlHeTubject  of  th7suit"ls' vested  in  one  who  is  not  ^xj_  ^>  o^-v 
a  party  to  the  suit,  and  dispense  with  the  necessity  of  bringing  x.^^../x-<k>«-v  v 
him  before  the  court  by  averring  that  his  interest  is  that  of  a  Jls\,- 
trustee_for  one  of  the  defendants.     The  trustee  is  nevertheless 
a  necessary  party.    So  far  as  the  allegations  oflhe  bill  are  con- 
cerned, the  decree  foreclosing  the  liens  was  a  valid  decree,  and 
the  title  acquired  thereunder  is  the  title  to  the  whole  of  the  real*"^  ^'^^  *^ 
estate  which  is  in  controversy  in  the  suit.    If  it  be  not  true,  as 
alleged  in  the  bill,  that  the  title  vested  in  Isabel  C.  Jones  is  held 
in  trust  for  the  appellants,  it  follows  that  the  court  is  called 
upon  to  deal  with  property  in  which  neither  the  appellants  nor 
the  appellees  have  any  interest.     The  court  can  afford  the  re- 
lief which  is  prayed  for  only  by  finding  that  Isabel  C.  Jones 
holds  the  title  in  trust  for  McConnaughey.     This  it  cannot  do 
unless  she  is  brought  into  the  suit.     Equity  rule  47,  it  is  true, 
permits  a  relaxation  of  the  chancery  rule  as  to  parties  in  cases 
where  a  necessary  party  is  without  the  jurisdiction  of  the  court, 
or  where  his  joinder  would  oust  the  jurisdiction.    The  Supreme 
Court  has  nevertheless  repeatedly  held  that  the  rule  does  not 
enable  the  circujt  court  to  make  a  decree  which  can  affect  the 
rights  of  one  who  is  absent,  and  that  all  persons  whose  interest 
would  be  directly  affected  by  the  decree  are  indispensable  par- 
ties.    Shields  v.  Barrow,  17  How.,  i30,  139,  15  L.  Ed.,  158; 


342  PARTIES  TO  ACTIONS.  [ClIAP.    II. 

Ribon  V.  Railroad  Co.,  10  Wall.,  44(3.  -450,  21  L.  Ed.,  3G7 ;  Wil- 
liams V.  Bankhead,  19  Wall.,  563,  22  L.  Ed.,  184;  Kendig  v. 
Dean,  97  U  .S.,  423,  24  L.  Ed.,  1061.  But  in  the  present  suit 
no  case  is  made  for  the  application  of  rule  47.  No  reason  is 
alleged  for  omitting  Isabel  C.  Jones  from  the  parties  defend- 
ant. The  court  is  called  upon  to  go  no  further  than  to  apply 
the  fi^eneral  chancery  rule  that  all  those  who  havfi  an  interest  in, 
-A'vxi-^-  the  subject  of  the  controversy,  or  whose  presence  is  necessaix 

Av  AA-!^  to  a  determination  onEe^  entire  controversy ,_mustje  niade  pa^ 
txAi^  tfy^-jL;^ tTesT'^O 'E*aFo^.  ISfcCohnen,  9TTT.^.7To(5r23  h.  Ed.,  840;  Ken- 
^^Hig  V.  Dean,  97  U.  S.,  423,  24  L.  Ed.,  1061;  Sioux  City  Terminal 
R.  R.  &  Warehouse  Co.  v.  Trust  Co.  of  North  America,  27  C.  C. 
A.  73,  82  Fed.,  124.  Tested  by  that  rule,  there  can  be  no  doubt 
that  the  demurrer  for  want  of  a  proper  party  defendant  was 
properly  sustained  by  the  court. 

It  is  unnecessary  to  consider  the  other  grounds  of  demurrer. 
The  decree  will  be  affirmed.  r,  .     , 


REFORMED  PRESBYTERIAN  CHURCH  v.  NELSON. 

35  Ohio   St.,   638.      \1880.] 

Error  to  the  District  Court  of  ^lu.skingum  county.' 

'**^'-^  The  original  petition  was  filed  in  the  Court  of  Common  Pleas 

of  Muskingum  county,  by  William  S.  Nelson  and  John  Nelson, 

two  of  the  heirs  of  Susannah  Forsyth,  deceased,  to  contest  her 

last  will  and  testament.     The  legatees,  devisees,  and  executors 

o--i^  vx>-«v_o^  named  in  the  will  were  made  defendants  in  the  petition,  as 

A:  X>^^»— *^x  ^gj,g  ^jgQ  ^Yie  other  heirs  of  the  testatrix,  to  wit :    James  Nelson, 

.V.V.A-.  Sarah  Nelson,  and  Mary  Ann  Nelson. 

The  will,  among  other  bequests,  gave  to  David  Forsyth  the 
silver  watch  of  the  testatrix.  After  satisfying  these  bequests 
the  residue  of  her  property  was  given  to  the  Reformed  Presby- 
terian and  Covenanter  Church ;  and  H.  P.  McClurken  and  Mar- 
shall Hardesty  were  appointed  executors. 

There  was  no  service  of  process  upon  the  defendants  David 
Forsyth,  James  Nelson,  or  Mary  Ann  Nelson;  nor  was  their 
appearance  in  any  way  effected.     A  verdict  and  decree  were 
rendered  sustaining  the  will.     *     *     * 
White,  j.     *     *     * 


■\/-/\X^    C^^^yv/^-' 


Sec.  3.]     reformed  Presbyterian  church  v.  nelson.  343 

2.     There  was  error  in  trying  the  issue  and  in  renderJQg  the  y\^  Asocaj.>. 
decree,  without  the  appearance  of  David  Forsyth,  one  of  the    iv.XA,*3-.SL«k 
legatees,  having  been  effected  in  the  action.  ,  v_*-..,j-ic  Wj 

The  code,  in  respect  to  parties,  has  adopted,  substantially  the  ro<r^'-d<.>^^ 
rules  before  existing  in  courts  of  equity.  *^^S^!^  Jlra 

Section  40  provides,  that:  "The  court  may  determine  any  ^^^^^  ^^^ 
controversy  between  parties  before  it,  when  it  can  be  done  with- 
out prejudice  to  the  rights  of  others,  or  by  saving  their  rights ; 
but  when  a  determination  of  the  controversy  can  not  be  had 
without  the  presence  of  other  parties,  the  court  must  order 
them  to  be  brought  in."    S.  &  C,  958. 

The  proposition  that,  where  no  objection  is  made  by  demurrer 
or  answer  on  account  of  the  defect  of  parties,  the  objection  is 
to  be  deemed  as  waived,  applies  only  in  cases  where  it  is  compe- 
tent  for  the  party  pleading  to  waive  the  objection.  Butjvhere 
the  presence  of  an  aj)sent_partyjs  essential  to  the  determination 
oFthe  controversy,  the  parties  can  not  waive  the  objection.  The 
court,  in  such  case,  must  order  the  party  to  be  brought  in. 
Moreover,  in  a  suit  to  contest  the  validity  of  a  will  no  answer 
is  re<:iuired.  The  statute  directs  what  the  issue  is  to  be,  whether 
there  is  an  answer  or  not. 

It  is  the  duty  of  the  plaintiff  instituting^  a  suit  to  settle  & 
conFroversy,  to  see  tlH  th^' necessary^arties_a^    brought  before 

the  court 

We  are  not  without  adjudications  directly  on  the  question 

now  before  us, 

McMacken  v.  McMacken,  18  Ala.,  576,  was  a  proceeding  in 
error  to  reverse  a  decree  setting  aside  a  will.  A  person  named 
as  a  legatee  in  the  will  was  not  made  a  party  to  the  suit,  in 
which  the  will  was  set  aside.  It  was  held,  by  the  court,  that  to 
a  bill  to  set  aside  a  will  all  the  legatees  are  indispensable  par- 
ties, and  that  the  omission  of  one,  who  is  an  indispensable  party 
to  the  bill,  is  a  defect,  for  which  the  decree  will  be  reversed  on 
error,  although  the  objection  is  taken  for  the  first  time  in  the 
reviewing  court.  To  the  same  effect  is  Vancleave  v.  Beam,  2 
Dana.  155,  and  Rogers  v.  Thomas,  1  B.  Mon.,  390. 

In  the  case  last  named  one  of  the  questions  stated  was, 
whether  there  was  available  error  in  trying  the  issue  as  to  the 
validity  of  the  will  when  all  necessary  parties  were  not  before 
the  court.  In  answering  this  question,  on  page  398,  the  court 
says:  "Two  slaves,  emancipated  by  the  contested  document, 
were   not  made   parties.     They  were  necessary   parties,  whose 


344  PARTIES  TO  ACTIONS.  [ChAP.   II. 

rights  cannot  be  coneludctl  by  the  verdict  and  decree  between 
ether  parties.    One  of  the  chief  objects  of  such  a  procedure  by 
bill,  was  to  settle,  finally  and  conclusively,  all  litigation  as  to  a 
o^J)  cjo^^  contested  will;  and  it  is  the  chancellor's  duty  in  such  a  case 
lo   ~kX  ^-o     *^*  require  all  persons  interested  as  heirs  or  devisees  to  be  made 
^x  >j3ji>~y^Xj^  parties  before  he  permits  a  final  trial  or  renders  a  final  decree. 
jty.AiK.-A       Endless  litigation  and  confusion  might  result  from  permitting 
'Jt   <»Jil5j,        a  decree  to  stand,  which  can  not  conclude  all  persons  directly 
6j^^  'j'^-^^*^  interred  in  establishing  or  mvaliding  the  wiU." 
v*^  ^™^    In'Shields  v.  Barrow,  17  How.,  "l3'9,  Curtis,  J.,  in  speaking  of 
.^^^1.      the  different  classes  of  parties  in  equity,  describes  the  third 
class  as  follows :    ' '  Persons  who  not  only  have  an  interest  in  the 
controversy,  but  an  interest  of  such  a  nature  that  a  final  decree 
can  not  be  made  without  either  affecting  that  interest,  or  leav- 
ing the  controversy  in  such  a  condition  that  its  final  termination 
may  be  wholly  inconsistent  with  equity  and  good  conscience." 
In  Holt  V.  Lamb,  17  Ohio  St.,  375,  the  effect  of  the  decree 
setting  aside  the  will  was  drawn  in  question  in  a  collateral  suit. 
And  it  was  there  held  that  the  parties  to  the  suit  in  which  the 
decree  was  rendered  were  bound  by  the  decree,  that  it  was  not 
void  as  to  them ;  but  that  as  to  all  other  persons  in  interest  the 
decree  was  void.    No  question  arose  in  that  ease  as  to  the  decree 
being  reversible  on  error.     But  as  it  was  held  to  be  void  as  to 
some  of  the  persons  in  interest  and  binding  as  to  others,  in 
respect  to  the  same  property,  it  would  seem  to  be  necessarily 
erroneous  as  to  the  parties  to  the  suit. 

In  Singleton  v.  Singleton,  8  B.  Monroe,  340,  a  different  view 
was  taken  of  the  effect  of  a  decree  setting  aside  a  will.  And  it 
was  held  in  that  case  that  the  verdict  of  the  jury  upon  a  bill 
filed,  contesting  a  will,  must  be  binding  on  all  interested  in  the 
will,  or  it  is  not  binding  upon  any.  But  this  case  recognizes  the 
authority  of  Rogers  v.  Thomas,  supra,  in  which  it  was  held  that 
the  absence  of  a  necessary  party  to  the  proceeding  setting  aside 
the  will,  was  ground  for  the  reversal  of  the  decree  on  error. 
See  page  356  of  the  opinion.  t)'  '^   '^     '''^- 

Judgment  reversed  and  cause  remanded* 

Johnson,  J.,  dissenting:  The  judgment  of  the  court  below 
setting  aside  the  will,  is  reversed  by  this  court,  on  the  applica- 
tion of  the  executors  and  others,  vho  were  served  and  made  full 


♦Wells  V.  Wells,  144  Mo.  198,  accord. 


Sec.  3.]     reformed  Presbyterian  church  v.  nelson.  345 

defense,  on  the  ground  that  one  Forsythe,  a  legatee,  who  was  a 
defendant,  was  not  served  or  otherwise  before  the  court  below. 
No  objection  was  made  by  any  one,  on  this  account,  in  the  com- 
mon pleas,  or  after  appeal  in  the  district  court,  before  final 
trial  and  judgment. 

The  executors  as  such,  defended  for  all  claiming  under  the 
will,  and  so  far  as  this  court  is  advised,  represented  Forsythe  '^^^*^\,,^ 
as  legatee.  He  does  not  complain  and  is  not  even  a  party  before  .^^^.^oJ^;,  ^jjjl, 
us.  Without  taking  space  to  state  the  reason  therefor  I  am  of  cwy.  -<v>o^ 
the  opinion  that  under  the  wills  act,  and  under  the  civil  code,  JcxkV*.  <*-^^^ 
the  plaintiffs  in  error,  having  made  no  objection  at  the  proper '^♦■*S^  ^''^ 
time,  can  not  ask  a  reversal  of  this  judgment  because  Forsythe,  <*j>^j»-^X  <^ 
a  legatee  only,  was  not  before  the  court  below.  -  "^^^^^  ^^^-^^-^^^ 


HAGAN  v.   WALKER. 
14  Hoiv.,  29.     [1852.] 

Curtis,  J.,  delivered  the  opinion  of  the  court. 

John  Hagan  &  Co.  filed  their  bill  in  the  district  court  of  the   ^  .         ^ 
United  States  for  the  northern  district  of  Alabama,  in  which        """^^^ 
they  state,  that  in  the  year  1834,  they  recovered  a  judgment  at  ^^^^^^ 
law  in  that  court  against  Leroy  Pope,  for  upwards  of  $7,000,    Vr-o-*'^^^'^ 
which  is  wholly  unsatisfied;  that  a  writ  of  fieri  facias,  running    eA3-'\A»*>^x^ 
against  the  lands,  body  and  goods  of  the  debtor,  was  regularly 
issued,  and,  on  the  10th  of  October,  1834,  was  returned  nulla 
bona;  and  from  that  time  to  the  filing  of  the  bill,  there  has 
not  been,  in  that  district,  or  elsewhere,  any  property  of  Leroy 
Pope,  out  of  which  the  judgment  debt  could  be  collected,  except 
certain    property    afterwards    mentioned.       The    bill    further 
alleges  that,  about  a  month  before  the  complainants  recovered 
their  judgment  at  law,  Leroy  Pope,  intending  to  defraud  the 
complainants,   and   to   hinder  them    from   obtaining  payment, 
made  conveyances,  both  of  real  and  personal  estate,  to  a  large 
amount,  to  his  son,  William  H.  Pope,  who  was  a  party  to  the 
fraud,  and  was  made  a  defendant  in  the  bill;  that  Leroy  Pope 
died  in  the  year  1844,  and  Samuel  Breck,  who  was  appointed 
his  administrator,  is  also  a  party  defendant.     The  complainants 
are  averred  to  be  citizens  of  Louisiana,  and  William  H.  Pope 
and  the  administrator,  citizens  of  Alabama.     The  defendants 


346  PARTIES  TO  ACTIONS.  [CUAP.   II. 

having  demurred  to  the  bill,  it  was  dismissed  by  the  district 
court,  and  the  complainant,  who  is  the  surviving  partner,  ap- 
pealed to  this  court.    . 

*  *  *  One  other  ground,  on  which  the  demurrer  has 
been  rested,  requires  notice.  The  bill  alleges  that,  after  the 
fraudulent  conveyances  to  William  H.  Pope  had  been  made,  he 
mortgaged  the  property  to  Virgil  jNIaxcy,  as  solicitor  of  the 
treasury  of  the  United  States^  to  secure  the  debt  of  Leroy  Pope 
which  William  H.  Pope  assumed  to  pay,  and  it  avers  that  this 
debt  has  been  in  part  payed  by  means  described  in  the  bill. 
Virgil  Maxcy,  and  subsequently,  when  he  went  out  of  office  his 
successor,  Charles  B.  Penrose,  were  named  as  parties  to  the  bill, 
but  they  were  out  of  the  jurisdiction,  no  process  was  served  on 
either  of  them,  and  neither  ever  appeared  or  answered.  The 
bill  prays  that  William  H.  Pope  may  be  compelled  to  pay  to 
ft^  JsJU'the  United  States  the  balance  due  to  them,  out  of  the  property 
>vX^  •^A^A.c*^  in  question,  and  that  the  residue  may  be  subjected  to  the  pay- 
^-^  ^         ,    ment   of  the  complainant's  debt,   and   for  other  and   further 

.  \         ^relief. 
k-9  5v.Ot>».^,>-^    Under  the  act  of  Congress  of  the  28th  of  February,  1839,  5 
1^  (Vv^'w:xAJ-</ Stats,   at  Large,  321,   §1,  it  does  not  defeat  the  jurisdiction 
^^  of  the  court  that  a  person  named  as  defendant  is  not  an  inhabi- 

tant of  or  found  within  the  district  where  the  suit  is  brought; 
the  court  may  still  adjudicate  between  the  parties  who  are 
properly  before  it,  and  the  absent  parties  are  not  to  be  con- 
cluded or  affected  by  the  decree. 

It  is  obvious,  however,  that  there  may  be  cases  in  which  the 

court  cannot  adjudicate  between  the  parties  who  are  regularly 

^'"'^^  ^^    before  it,   for  the  reason  that  it  cannot  bind  those  who  are 


■Vvj 


..^  vajolSL  n-v'^ 


«Jij-:iji>w<*:       absent.    Where  no  relief  can  be  given  without  taking  an  account 
^y^xJ^,  between  an  absent  party  and  one  before  the  court,  though  the 

defect  of  parties  may  not  defeat  the  jurisdiction,  strictly  speak- 
ing, yet  the  court  will  make  no  decree  in  favor  of  the  com- 
plainant. 
■*^  ^'•^^-K^,  The  case  before  us  is  not  one  of  this  character;  for  although^ 

^^^s^^T*^"*^  the  whole  of  the  relief  specially  prayed  for  cannot  be  granted 
fc^  AjiL3c  ■  in  the  particular  mode  there  indicated,  because  the  United 
x^  t»  sj^s.  States,  not  being  a  party,  nojaccountcan  be  taken  of  the  jdebt 
arw*-  ^er-^  duc  to  them  from  Leroy  Pope  or  William  H.  Pope,  yet,  subject 
•-  4>J>*brw,  -j-Q  i\^Q  encumbrance  of  this  debt,  and  without  affecting  it  in  any 
■  -^Aw^  W  ipanner,  the  property  may  be_a^ropriated  to  the  payment  of 
^    v^^^»J»)t    the  complainant's  debL 


Sec.  3.]  hagan  v.  walker.  347 

It  is  true,  that  in  Finley  v.  Bank  of  the  United  States,  11 
Wheat.,  306j  which  was  a  bill  to  foreclose  a  mortgage  by  sale, 
Chief  Justice  Marshall  says:     "It  cannot  be  doubted  that  the 
prior  mortgagee  ought  regularly  to  have  been  a  party  defend- 
ant, and  that,  had  the  existence  of  his  mortgage  been  known  to 
the  court,  no  decree  ought  to  have  been  pronounced  in  the  cause 
until  he  was  introduced  into  it."    But  it  could  not  have  beeni 
intended  by  this  to  say,  that  a  prior  encumbrancer  was  abso-\ 
lately  a  necessary  party  without  whose  presence  no  decree  of  \ 
sale  could  be  made,  because  in  that  very  case  the  court  refused 
to  treat  the  decree  as  erroneous,  after  it  had  been  executed. 

In  Delaber  v.  Norwood,  3  Swanst.,  144,  n.,  in  a  bill  to  obtain 
payment  of  an  annuity  charged  on  land,  prior  annuitants  were 
held  not  to  be  necessary  parties.  In  Rose  v.  Page,  2  Sim.,  471, 
the  same  rule  was  applied  to  a  prior  mortgagee;  and  in  Wake- 
man  V.  Grover,  4  Paige,  23,  and  Rundel  v.  Marquis  of  Donegal, 
1  Ilogan,  308,  and  Post  v.  ^Mackall,  3  Bland,  495,  to  prior  judg- 
ment creditors;  and  in  Parker  v.  Fuller,  1  Rus.s.  &  My.,  656,  per- 
sons having  encumbrances  on  real  property,  which  the  bill 
sought  to  subject  to  the  pajTnent  of  the  debts  of  the  deceased 
owner,  were  held  not  to  be  necessary  parties  to  the  bill.  See, 
also,  Hoxie  v.  Carr,  1  Sumner,  173;  Calvert  on  Parties,  128. 

On  the  other  hand,  there  are  cases  in  which  it  has  been  de- 
clared that  all  encumbrancers  are  necessary  parties.     Many  are 
collected  in  Story's  Eq.  PL,  178,  n.    But  we  consider  the  true '^ ^xl^^.^  >! — < 
rule  to  be,  that,  where  itjg  the  object  of  the  bill  to  procure  ^  \^^^^^k^ 
sal£_of_the  land,  and  the  prior  encumbrancer  holds  the  legal  '^^^v.-rr^joX*,, 
title^  and  his  debt  is  payable,  it  is  proper  to  make  him  a  partv  "y^~^^<->-^>-^^>-«Kr. 
in  order  that  a  sale  may  be  made  of  the  whole  title,     In  this  ^^■**'''^^^^- 
sense,  and  for  this  purpose,  he  may  be  correctly  said  to  be  a 
necessary  party,  that  is,  necessary  to  such  a  decree.     But  it  is 
in  the  power  of  the  court  to  order  a  sale  subject  to  the  prior  '^..^^X  v^vjJUv 
encumbrance,  a  power  which  it  will  exercise  in  fit  cases.     And  ^^"^  ^.^vr^r^ 
when  the  prior  encumbrancer  is  not  subject  to  the  jurisdiction  ^  ''^^>»v-va^ 
pf  the  court,  or  cannot  be  jomed  without  deteatmg  its  jurisdic^  ^^^^^■-'^''^  ^"^ 

tion,  and  the  validity  ot  the  encumbrance  is  admitted,  it  is  fiT^^^^v'    ' 

to  dispense  withhis  being  made  a  partv.  To  such  a  case  the  .,j^^  cxw^^ 
47th  rule  for  the  equity  practice  of  the  circuit  courts  of  the  ^^^AJ^  ^^^^^ 
United  States  is  applicable,  and  by  force  of  it,  this  cause  may  '^  <K^<-/o-. 
proceed  without  making  the  United  States,  or  the  solicitor  of  ^T^^"^^!^ 
the  treasury,  a  party  to  the  decree.  j^ 


348  PARTIES  TO  ACTIONS.  [ClIAP.    II. 

The  decree  of  the  district  court  may  be  reversed,  and  the  case 
remanded,  with  directions  to  overrule  the  demurrer,  and  order 
the  defendants,  other  than  the  representatives  of  the  United 
States,  to  answer  the  bill. 

SHIELDS  V.  BARROW. 

17  Howard,  130.     [1854.] 

Curtis,  J.,  delivered  the  opinion  of  the  court. 

"C^  To   make   intellifribk'  the  (piestions  decided  in   this  case,   an 

^=^>-8t>-       outline  of  some  part  of  its  complicated   proceedinj^s  must  be 

■^^^^^^J*"*"''^*- given.    They  were  begun  by  a  bill  in  equity,  filed  in  the  circuit 

'*'^''**~"      court  of  the  United  States  for  the  eastern  district  of  Louisiana, 

i^^WakA-.^^^  the  19th  of  December,  1842,  by  Robert  R.  Barrow,  a  citizen 

^*^  of  the  state  of  Louisiana,  against  Mrs.   Victoire   Shields,  and 

by  amendment  against  William  Bisland,  citizens  of  the  State 

.     -  of  Missi.ssippi.     The  bill  stated,  that  in  Julv,  1836,  the  com- 

plainant  sold   certain   plantations  and  slaves  in   Louisiana,   to 

'"^"^^^'^       one  Thomas  R.   Shields,  who  was  a  citizen  of  Louisiana,   for 


^^j^^^^  the  sum  of  $227,000,  payable  by  installments,  tht-  last  of  which 
^♦Ji.^     would  fall  due  in  ]\Iarch,  1844. 

L'VN,*;^  'T^^t  negotiable  paper  was  given  for  the  consideration  money, 
and  from  time  to  time  .$107,000  wtis  paid.     That  the  residue  of 

^^^5^^  the  notes  being  unpaid,  and  some  of  them  protested  for  non- 
4^)^,^         payment,  a  judgment  was  obtained  against  Thomas  R.  Shields, 

j^_rvcw>L.o^  the  purchaser,  for  a  part  of  the  purchase-money,  and  proceed- 
ings instituted  by  attachments  against  Thomas  R.  Shields  and 
AVilliam  Bisland,  one  of  his  indorsers,  for  other  parts  of  the 
purchase-money  then  due  and  unpaid.  In  this  condition  of 
things,  an  agreement  of  compromise  and  settlement  was  made, 
on  the  9th  day  of  November,  1842,  between  the  complainant, 
of  the  first  part,  Thomas  R.  Shields,  the  purchaser,  of  the  second 
part,  and  six  indorsers  on  the  notes  given  by  Thomas  R.  Shields, 
of  the  third  part.  Of  these  six  indorsers,  Mrs.  Shields  and  Bis- 
land, the  defendants  w^ere  two.  By  this  new  contract,  the  com- 
plainant was  to  receive  back  the  property  sold,  retain  the  $107,- 
000  already  paid,  and  the  six  indorsers  executed  their  notes, 
payable  to  the  complainant,  amounting  to  thirty-two  thousand 
dollars,  in  the  manner  and  proportions  following,  as  stated  in. 
the  bill : 


Sec.  3.]  shields  v.  barrow,  349 

"The  said  William  Bisland  pays  ten  thousand  dollars,  in 
two  equal  instalments,  the  first  in  March  next,  and  the  other 
in  March  foUowint;,  for  which  sum  the  said  William  Bisland 
made  his  two  promissory  notes,  indorsed  by  John  P.  Watson, 
and  payable  at  the  office  of  the  Louisiana  Bank  in  New  Orleans. 
The  said  R.  G.  Ellis  $6,966.66,  on  two  notes  indorsed  by  Wil- 
liam Bisland.  The  said  George  S.  Guion,  $2,750,  on  two  notes 
indorsed  by  Van  P.  Winder.  The  said  Van  P.  Winder,  $2,750, 
on  two  notes  indorsed  by  George  S.  Guion.  The  said  William 
B.  Shields,  $4,766.66,  on  two  notes  indorsed  by  Mrs.  Victoire 
Shields;  and  finally.  :Mrs.  Victoire  Shields  the  same  amount  on 
two  notes  payable  as  aforesaid  at  the  office  of  the  Louisiana 
Bank,  in  New  Orleans." 

The  complainant  was  to  release  the  purchaser,  Thomas  R. 
Shields,  and  his  indorsers,  from  all  their  liabilities  then  out- 
standing, and  was  to  dismiss  the  attachment  suit  then  pending 
against  Thomas  R.  Shields  and  Bisland. 

The  bill  further  alleges,  that  though  the  notes  were  given, 
and  the  complainant  went  into  possession  under  the  agreement 
of  compromise,  the  agreement  ought  to  be  rescinded,  and  the 
complainant  restored  to  his  original  rights  under  the  contract 
of  sale:  and  it  alleges  various  reasons  therefor,  which  it  is  not 
necessary  in  thus  connection  to  state.  It  concludes  with  a 
prayer  that  the  act  of  compromise  may  be  declared  to  have 
been  improperly  procured,  and  may  be  annulled  and  set  aside, 
and  tliat  the  defendants  may  be  decreed  to  pay  such  of  the  notes, 
bearing  their  indor.semcnt,  as  may  fall  due  during  the  progress 
of  the  suit,  and  for  general  relief. 

Such  being  the  scope  of  this  bill  and  its  parties,  it  is  per-  vx^^-  ^j^ 
fectly  clear  "that  tjie  circuit  court  of  the  United  States  for  ^^^;^  ^ 
Louisiana,  could  not  make  any_deereejhm^  The  ^^^"tract  .^^_^^X^ 
of  ooinpnmnse  was  one  entire  subject,  and  from  its  nature^^^  _^ 
could  not  be  rescinded,  so  far  as  respected  two  onhe. parties  tn  ^  ,^^,^^^^^ 
it,  and  allowed  to  stand  as  to  the_otjuua-  Tliomas  R.  Shi-'lds,  - 
the  principal,  and  four  oui_of_«ix  of  his  indoi-sers,  beimL-CJlJ- 
zensof  Louisiana,  could  not  be  made  defendants  in  this  sujt  / 
V;T7^-h  of  them  was  an  indispensable_part\-  to  a  bill  for  the 
rescission  of  the  contract.  Ndth^Tthe  act  of  congress  of  Feb- 
ruary 28,  1839,  5  Stats,  at  Large,  321,  section  1,  nor  the  47th 
rule  'for  the  equity  practice  of  the  circuit  courts  of  the  United 
States,  enables  a  circuit  court  to  make  a  decree  in  equity,  in 


350  PARTIES  TO  ACTIONS.  [ClIAl'.  II. 

the  absence  of  an  indispensable  party,  whoi?e  riprhts  must  nec<is- 
sarily  be  affected  by  such  decree. 

In  Russell  v.  Clarke's  Executors,  7  Cranch,  98,  this  court 
said:  "The  incapacity  imposed  on  the  circuit  court  to  proceed 
afjainst  any  person  residing'  within  the  United  States,  but  not 
within  the  district  for  which  the  court  may  be  holden,  would 
certainly  justify  them  in  dispensing  with  parties  merely  formal. 
Perhaps  in  cases  where  the  real  merits  of  the  cause  may  be  de- 
termined without  essentially  affecting  the  interests  of  absent 
persons,  it  may  be  the  duty  of  the  court  to  decree,  as  between 
the  parties  before  them.  But,  in  this  case,  the  assignees  of  Rob- 
ert Murray  and  Co.  are  so  essential  to  the  merits  of  the  ques- 
tion, and  may  be  so  much  affected  by  the  decree,  that  the  court 
cannot  proceed  to  a  final  decision  of  the  cause  till  they  are 
parties." 

The  court  here  points  out  thi-ee  classes  of  parties  to  a  bill 
in  equity.  They  are:  (D  Formal  parties.  (2^  Persons  having 
^  an_interest  in  the  controyeggx^  and  who  ought  to  be  made  par- 
^"'^''^^^  tiesTm  order  that  the  court  may  act  on  that  rule  which  requires 
^  c*-**^^^  it  to  decide  on,  and  finally  determine  the  entire  controversy,  and 
do  complete  justice,  by  adjusting  all  the  rights  involved  in  it. 
These  persons  are  commonly  termed  necessary  parties;  but  jf 
their  interests  are  separable  from  those  of  the  parties  b<"fore  th^^ 
court,  so  that  the  court  can  ^roceedjg  a  decree,  aiid  do  complete 
and  final  justice,  without _affecting__other  persons  not  before  the 
court,  the  latter  are  not  mdispensable  parties.  (^  l^rjjons  wlm 
not  only  have  an  interest  inJlML-CmitrQYersv.  but  an  interest  q| 
suchaTnature  that  aTmaraecr^]cann^I^^^g_gitJ^^ 
affecting  th^lntereg7^Teavingl5ieconi^Xgr"s^  such  ali^ 
clition  thatlts  linal  termination  may  be_  w^hoUvinconsistent  with 
equity  and  good  conscience.. 

A  bill  to  rescind  a  contract  affords  an  example  of  this  kind. 
For,  if  only  a  part  of  those  interested  in  the  contract  are  before 
the  court,  a  decree  of  rescission  must  either  destroy  the  rights 
of  those  who  are  absent,  or  leave  the  contract  in  full  force  as 
respects  them ;  while  it  is  set  aside,  and  the  contracting  parties 
restored  to  their  former  condition,  as  to  the  others.  We  do  not 
say  that  no  case  can  arise  in  which  this  may  be  done;  but  it 
must  be  a  case  in  which  the  rights  of  those  before  the  court  are 
completely  separable  from  the  rights  of  those  absent,  other- 
wise the  latter  are  indispensable  parties. 

Now  it  will  be  perceived,  that  in  Russell  v.  Clarke's  Executors, 


Sec.  3.]  shields  v.  barrow.  351 

this  court,  after  considering  the  embarrassments  which  attend 
the  exercise  of  the  equity  jurisdiction  of  the  circuit  courts  of 
the  United  States,  advanced  as  far  as  this :  They  declared  that 
formal  parties  may  be  dispensed  with  when  they  cannot  be 
reached ;  that  persons  having  rights  which  must  be  affected  ^^ 
a  decree,  cannot  be  dispensed  with;  and  they  express  a  doubt 
concerning  the  other  class  of  parties.  This  doubt  is  solved  in 
favor  of  the  jurisdiction  in  subsequent  cases,  but  without  in- 
fringing upon  what  was  held  in  Russell  v.  Clarke's  Executors, 
concerning  the  incapacity  of  the  court  to  give  relief,  when  that 
relief  necessarily  involves  the  rights  of  absent  persons.  As  to 
formal  or  unnecessary  parties,  see  "Wormley  v.  Wormley,  8 
Wheat.,  451 ;  Carneal  v.  Banks,  10  ibid.,  188 ;  Vattier  v.  Hinde, 
7  Pet.,  266.  As  to  parties  having  a  substantial  interest,  but  not 
so  connected  with  the  controversy  that  their  joinder  is  indis- 
pensable, see  Cameron  v.  M 'Roberts,  3  Wheat.,  591;  Osborn  v. 
The  Bank  of  the  United  States,  9  ibid.,  738 ;  Harding  v.  Handy, 
11  ibid.,  132.  As  to  parties  having  an  interest  which  is  insep- 
arable from  the  interests  of  those  before  the  court,  and  who 
are,  therefore,  indispen.sable  parties,  see  Cameron  v.  ^M'Rob- 
erts,  3  ibid.,  591 ;  Mallow  v.  Hinder  12  ibid.,  197. 

In  Cameron  v.  M'Roljerts,  where  the  citizenship  of  the  other 
defendants  than  Cameron  did  not  appear  on  the  record,  this 
court  certified:  "If  a  joint  interest  vested  in  Cameron  and  the 
other  defendants,  the  court  had  no  jurisdiction  over  the  cause. 
If  a  distinct  interest  vested  in  Cameron,  so  that  substantial  jus- 
tice (so  far  as  he  was  interested)  could  be  done  without  affect- 
ing the  other  defendants,  the  jurisdiction  of  the  court  might  be 
exercised  as  to  him  alone,"  And  the  grounds  of  this  distinc- 
tion are  explained  in  Mallow  v.  Ilinde,  12  Wheat.,  196,  198. 

Such  was  the  state  of  the  laws  on  this  subject  when  the  act 
of  congress  of  February  28,  1839,  5  Stats,  at  Large,  321,  was 
passed,  and  the  47th  rule,  for  the  equity  practice  of  the  circuit 
court  of  the  United  States,  was  made  by  this  court. 

The  first  section  of  that  statute  enacts:  "That  when,  in  any 
suit,  at  law  or-  in  equity,  commenced  in  any  court  of  the  United 
States,  there  shall  be  several  defendants,  any  one  or  more  of 
whom  shall  not  be  inhabitants  of,  or  found  within,  the  district 
where  the  suit  is  brought,  or  shall  not  voluntarily  appear  thereto, 
it  shall  be  lawful  for  the  court  to  entertain  jurisdiction,  and 
proceed  to  the  trial  and  adjudication  of  such  suit  between  the 
parties  who  may  be  properly  before  it;  but  the  judgment  or 


cJoIi 


PARTIES  TO  ACTIONS. 


[Chap.  II. 


decree  rendered  therein  shall  not  conclude  or  prejudice  other 
parties  not  regularly  served  with  process,  or  not  voluntarily 
appearinfj  to  answer;  and  the  non-joinder  of  parties  who  are 
not  so  inhabitants,  or  found  Avithin  the  district,  shall  constitute 
no  matter  of  abatement  or  other  objection  to  said  suit." 

This  act  relates  .solely  to  the  non-joinder  of  persons  who  ar^ 
not  within  the  reach  of  the  process  of  the  court.  It  does  not 
affect  any  case  where  persons,  havincr  an  interest,  are  not  joined 
tsJl!  cg'^^-J^i-****  because  their  citizenship  is  such  that  their  joinder  would  defeat 
the  jurisdiction;  and,  so  far  as  it  touches  suits  in  equity,  we 
understand  it  to  be  no  more  than  a  legislative  affirmance  of  the 
rule  previously  established  by  the  cases  of  Cameron  v.  M 'Rob- 
erts, 3  Wheat.,  591 ;  Osborn  v.  The  Bank  of  the  United  States, 
9  ibid.,  738;  and  Harding  v.  Handy,  11  ibid.,  132.  For  this 
court  had  already  there  decided,  that  the  non-joinder  of  a  party 
who  could  not  be  served  with  process,  would  not  defeat  the 
jurisdiction.  The  act  says,  it  shall  be  lawful  for  the  court  to 
entertain  jurisdiction ;  but,  as  is  observed  by  this  court,  in 
Mallow  v.  Hinde,  12  Wheat.,  198,  when  speaking  of  a  case  where 
an  indispensable  party  was  not  before  the  court,  "we  do  not 
put  this  case  upon  the  ground  of  jurisdiction,  but  upon  a  much 
broader  ground,  which  must  equally  apply  to  all  courts  of 
equity,  w^hatever  may  be  their  structure  as  to  jurisdiction;  we 
put  it  on  the  ground  that  no  court  can  adjudicate  directly  upon 
a  person's  right,  without  the  party  being  either  actually  or 
constructively  before  the  court." 

So  that,  while  this  act  removed  any  difficulty  as  to  jurisdic- 
tion, between  competent  parties,  regularly  served  with  process, 
it  does  not  attempt  to  displace  that  principle  of  jurisprudence 
on  which  the  court  rested  the  case  last  mentioned.  And  the 
47th  rule  is  only  a  declaration,  for  the  government  of  practi- 
tioners and  courts,  of  the  effect  of  this  act  of  congress,  and  of 
the  previous  decisions  of  the  court,  on  the  subject  of  that  rule. 
Hagan  v.  Walker,  14  How.,  36.  It  remains  true,  notwithstand- 
ing the  act  of  congress  and  the  47th  rule,  that  a  circuit  court 
can  make  no  decree  affecting  the  rights  of  an  absent  person,  and 
can  make  no  decree  between  the  parties  before  it,  which  so  far 
involves  or  depends  upon_the  rights  of  an  absent  person,  that 
complete  and  final  justice  cannot  be  done  between  the  parties 
to  the  suit  without  affecting  those  rights,.  To  use  the  language 
'of  this  court,  in  Elmendorf  v.  Taylor,  10  Wheat.,  167:  ''If  the 
case  may  be  completely  decided,  as  betw^een  the  litigant  parties, 


r 


Sec.  3.]  shields  v.  barrow.  353 

the  circumstance  that  an  interest  exists  in  some  other  person 
whom  the  process  of  the  court  cannot  reach, — as  if  such  party 
be  a  resident  of  another  State, — ought  not  to  prevent  a  decree 
upon  its  merits."  But  if  the  case  cannot  be  thus  completely- 
decided,  the  court  should  make  no  decree. 

We  have  thought  it  proper  to  make  these  observations  upon  ^^^  »x^  p_ 
the  effect  of  the  act  of  congress  and  of  the  47th  rule  of  this      -^  ,  . 

court,  because  they  seem  to  have  been  misunderstood,  and  mis-  ,,^,,,^jj^  ^^  -^^ 
applied  in  this  case;  it  being  clear  that  the  circuit  court  couldA-^^^jS-JK/vo*  >^ 
make  no  decree,  as  between  the  parties  originally  before  it,  so  \^f^^i'<^  v^rCl) 
as  to  do  complete  and  final  justice  between  them  without  affect-  ^^va^vjv.-6.>-<j^^-^ 
ing  the  rights  of  absent  persons,  and  that  the  original  bill  \N-*- /^'--sf'^^ ' 
ought  to  have  been  dismissed.*  oX-Ovka^ 

_ \^    ^^, 

*See  also  ConoUy  v.  Wells,  33  Fed.  265,  for  a  further  discussion  of 
necessary  defendants  in  equity. 


23 


CHAPTER    III. 

THE    COMPLAINT. 
Section  1.     The  Facts  Constituting  the  Cause  of  Action. 

Code  Provisions. 

"First  pleading  to  be  the  complaint."  "The  first  pleading, 
on  the  part  of  the  plaintiff,  is  the  complaint. '  '—.V.  Y.  Code  Civ. 
Proc.  sec.  478. 

^'Complaint:  wlmt  to  contain.    The  complaint  must  contain: 

''1.  The  title  of  the  action,  specifying  the  name  of  the  court 
in  which  it  is  brought;  if  it  is  brought  in  the  supreme  court, 
the  name  of  the  county,  which  the  plaintiff  designates  as  the 
place  of  trial;  and  the  names  of  all  the  parties  to  the  action, 
plaintiff'  and  defendant. 

"2.  A  plain  and  concise  statement  of  the  facts,  constituting 
each  cause  of  action,  without  unnecessary  repetition. 

"3.  A  demand  of  the  judgment  to  which  the  plaintiff  sup- 
poses himself  entitled.  "—iV.  Y.  Code  Civ.  Proc.  sec.  481. 

"The  petition  is  the  first  pleading — what  it  shall  contain. — 
The  first  pleading  on  the  part  of  the  plaintiff  is  .the  petition, 
which  shall  contain:  First,  the  title  of  the  cause,  specifying 
the  term,  the  name  of  the  court  and  county  in  which  the  action 
is  brought,  and  the  names  of  the  parties  to  the  action,  plaintiffs 
and  defendants;  second,  a  plain  and  concise  statement  of  the 
facts  constituting  a  cause  of  action,  without  unnecessary  repeti- 
tion; third,  a  demand  of  the  relief  to  which  the  plaintiff  may 
suppose  himself  entitled.  If  the  recovery  of  money  be  demand- 
ed, the  amount  thereof  shall  be  stated,  or  such  facts  as  will 
enable  the  defendant  and  the  court  to  ascertain  the  amount  de- 
manded."—Mo.  Code  {B.  S.  1899)  sec.  592, 


354 


Sec.  1.]  SHERIDAN  V.   JACKSON.  355 

(a)   Ultimate  Facts  as  Distinguished  From  Matters  of  Law  and 

Evidence. 

SHERIDAN  V.  JACKSON. 

72  N.  Y.  170.     [1878.] 

Earl,  J.     On  the  trial    of    this    action,    after   plaintiff   had 
opened  his  case,  the  court  dismissed  the  complaint  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion.    He  did  not  ask  for  leave  to  amend  his  complaint,  but  AJ^^^.-Jfc^  «r 
he  excepted  to  the  decision  and  appealed  to  the  General  Term,  V^Ov  c\  \t 
and  then  to  this  court,  insisting  all  the  time  that  his  complaint  ^ajJUJJ.^  u 
was  sufficient.     Under  such  circumstances  the  complaint  must  ^^^--^-^-iMJ^ 
be  treated  here  as  if  it  had  been  demurred    to,    and   the    sole        "^ 
question  to  be  considered  here  is,  whether  it  sufficiently  states 
a  cause  of  action? 

It  alleges  that  plaintiff  "was,  on  the  19th  day  of  November, 
1856,  entitled  to  the  possession  of,  and  the  rents,  issues  and 
profits  thereof,  and  has  been  since  and  still  is  entitled  to  the 
same,"  of  seventy-five  lots  of  land  in  the  city  of  Brooklyn,  de- 
scribing them ;  that  on  or  about  the  26th  day  of  January,  1870, 
an  action  was  begun  in  the  Supreme  Court  between  the  defend- 
ants Jackson  as  plaintiffs  and  the  other  defendants,  excepting 
Cameron,  as  defendants,  and  that  the  parties  to  that  action 
claimed  as  between  each  other  some  interest  in  these  premises 
or  the  rents,  or  profits  thereof;  that  afterwards  in  that  action 
defendant  Cameron  was  appointed  receiver  of  the  rents,  issues 
and  profits  of  the  said  premises;  that  subsequently  rents  and 
profits  amounting  to  a  large  sum  arising  from  the  said  prem- 
ises came  into  his  hands,  and  that  plaintiff  had  demanded  from 
him  the  rents  and  profits  so  received  by  him,  and  had  been  re- 
fused; and  then  the  plaintiff'  demanded  relief,  that  the  defend- 
ant Cameron  account  for  all  moneys  received  by  him  in  the  ac- 
tion in  which  he  was  appointed  receiver;  that  he  be  restrained 
from  "paying  over  to  any  person  or  persons,  or  making  any 
disposition  of  the  said  moneys,"  so  received,  or  afterwards  to 
be  received  by  him;  "that  he  be  required  to  pay  the  said  moneys 
into  court,"  or  to  the  plaintiff,  or  to  a  receiver  to  be  appointed 
in  the  action;  that  such  order  be  made  as  is  just;  that  a  judg- 
ment and  decree  be  made  adjudging  and  requiring  the  said 
moneys  to  be  paid  to  the  plaintiff'.     No  relief  or  judgment  was 


356 


THE  COMPLAINT. 


[Chai'.  111. 


demanded  against  any  of  the  defendants  but  the  receiver  Cam- 


eron. 


The  complaint  does  not  allege  any  facts  showin^^  that  the 
plaintiir  was  entitled  to  the  rents  and  profits.  It  does  not  al- 
lege that  he  owned  or  ever  possessed  the  premises,  or  that  he 
owned  the  rents.  The  allegation  that  h^was  entitled  to  the  pos. 
session  of  the  land  alid  to  the  rents  and  profits,  is  a  mere  al-' 
Ipgation  of  a  conclusiQn~ot  i?iw.  'ihe  facts  should  have  beerTaT 
jcged  from  which  such  a  conclusion  of  law  could  have  been 
dm^n,  (Fattison  v.  Adams,  7  Hill,  126;  Scofipld  v.  Whlte^ 
Icgge,  49  N.  Y.  259.) 

There  is  a  further  defect.  The  complaint  does  not  show  an^r 
jjgin  in  the  plaintiff  to  intervene  jn  tjie  litigation  b^etweenjhe 
defendants.  There  is  _no  allegatjon  that  any  of  the  parties  to 
that  action  claimed  anything  therein  in  hostility  to  him,  or 
showing  that  he  could  in  any  way  be  damaged  by  that  litiga- 
tion, or  bound  by  anything  done  or  adjudicated  therein.  What 
right  had  he  then  to  come  into  court  and  seek  to  take  or  control 
the  moneys  which  they,  in  a  litigation  between  themselves,  had 
placed  in  the  hands  of  a  receiver  to  be  disposed  of  in  that  ac- 
tion? 

There  is,  therefore,  abundant  reason  for  holding  that  the 
complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action.     *     *     * 

Judgment  affirmed.* 


V  <*^- 


A>kffVV- 


PAYNE   V.   TREADWELL. 
16  Cal.  220.     [I860.] 

On  petition  for  rehearing.  Field,  C.  J.,  delivered  the  opinion 

of  the  Court — Baldwin,  J.,  concurring. 

^  au«VA^sr*-j^.     The  defendants  apply  for  a  rehearing  upon  three  grounds, 

which  were  not  noticed  in  the  opinions  delivered  in  this  case: 

1st.  Error  in  overruling  the  demurrer  to  the  complaint.  *     *     * 

The  first  ground  was  discussed  in  the  briefs  of  counsel,  and 


•\ 


^       *And  so  in  Garner  v.  McCullough,  48  Mo.  318,  "the  averment  that 
J    the  plaintiff  was  entitled  to  exclusive  possession  of  the  premises  is 
j   the  statement  of  a  mere  conclusion  of  law,  from  facts  which  were  tra- 
y  versable  and  which  were  not  set  out  in  the  petition." 


Sec.  L]  rAy>:E  v.  treadwell.  357 

should  have  been  considered  in  the  opinion ;  for,  if  sustained,  it 
must  lead  to  a  reversal  of  the  judgment.  We  will  now  supply 
the  omission  and  proceed  to  consider  it  at  length.  pv.,;^  ,m^ 

The  complaint  alleges  "that  the  said  plaintiffs  are  the  o^^'^^- \\  ^^^^^ 
ers  in  fee  as  tenants  in  common,  and  have  the  lawful  right  \\,j^-awvxA^ 
and  are  entitled  to  the  possession"  of  the  described  premises,  M-.»,.jcALJi- 
and  that  the  said  defendants  wrongfully  entered  upon  and  are 
now  in  the  wrongful  and  unlawful  possession  of  said  premises, 
and  wrongfully  and  unlawfully  withhold  the  possession  thereof 
from  said  plaintiffs.     Then  follows  the  prayer:     "Wherefore, 
the  plaintiffs  demand  judgment  that  they  recover  and  be  put 
in  possession  of  said  premises,  and  that  the  defendants  pay  dam- 
ages for  the  unlawful  withholding  of  said  premises,  and  for 
the  rents  and  profits  thereof,  in  the  sum  of  $3,000." 

To  the  complaint  the  defendants  demurred,  on  the  ground 
that  it  does  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion. The  demurrer,  if  we  understand  it,  is  also  directed  to 
the  absence  of  any  allegations  as  to  the  damages  claimed  in  the 

prayer. 

The  principal  objection  to  the  complaint,  and  the  only  one 
urged  in  the  brief  of  counsel,  and  in  the  petition  for  a  re- 
hearing, is  that  its  allegations  of  title  and  right  of  possession 
in  the  plaintiffs,  and  of  the  wrongful  and  unlawful  possession 
by  the  defendants,  arc  not  allegations  of  facts  but  of  conclu- 
sions of   law.  .  f,^      y      ' 

It  is  usual  to  speak  of  the  action  to  recover  the  possession  ot  ^^^^^^ 
real  property  as  an  action  of  ejectment,  and  it  is  possible  that  ''^;^;^y^ 
with  the  technical  designation  it  is  sometimes  thought  that  some  ^^j;,,,,^ 
ot  the  technical  allegati.ms  peculiar  to  the  old  form  of  the  action^  5Urw»^ 
are  still  necessary.    But  such  is  not  the  case.    There  is  but  ^n^x^v^^^^ 
form  of  civil  actions  in  this  State,  and  all  the  forms  of  Pl^^^^"  ^^X^^. 
ings  and  the  rules  by  which  their  sufficiency  is  to  be  determined 
are  prescribed  by  the  Practice  Act.     (See  sec.  37.)     The  com- 
plaint must  contain  "a  statement  of  the  facts  constituting  the 
cause  of  action  in  ordinary  and  concise  language,"  and  it  may 
be  verified  by  the  oath  of  the  party,  in  which  case  the  answer 
must  also  be  verified.     The  system  in  this  State  requires  the 
facts  to  be  alleged  as  they  exist,  and  repudiates  all  fictions.  And 
only  such  facts  ne«d  be  alleged  as  are  required  to  be  proved, 
except  to  negative  a  possible  performance    of    the    obligation 
which  is  the  basis  of  the  action,  or  to  negative    an    inference 
from  an  act  which  is  in  itself  indifferent.     Now,    what    facts 


358  TilE  COMPLAINT.  [CH-VP.  HI. 

must  be  proved  to  recover  iu  ejectment?     These  only:  that  the 

I)laintiff  is  seized  of  the  premises,  or  of  some  estate  therein  in 

fee,  or  for  life,  or  for  years,  and  that  the  defendant  was  in 

their  possession  at  the  commencement  of  the  action.     The  seizin 

is  the  fact  to  be_aUe|jed.     It  is  a  pleadable  and  issuabhTfact,  to 

be  established  by  conveyances  from  a  paramount  source  of  title, 

or  by  evidence  of  prior  possession.    It  is  the  ultimate  fact  upon 

gC}s/,,.a>.JC        wljich_the  claim  to  recover  depends,  and  it  is  tacts  oi:  this  char^ 

iuv^v-^  »rvOL    acter^jvhlch  must  be'  alleged,  and  not  tlie  prior  or  probaOw 

>^xj^-^Vj>-     facts ^^h  go  to  establish  them,     it  is  the  ultimate  facts— 

^a-=V*^"  which  could  not  be  struck  out  of  a  pleading  without  leaving  it 

insufficient — and  not  the  evidence  of  those  facts,  which  must  be 

stated.     It  is  sufficient,  therefore,  in  a  complaint  in  ejectment 

for  the  plaintiff  to  aver  in  respect  to  his  title,  that  he  is  seized 

of  the  premises,  or  of  some  estate  therein  in  fee,  or  for  liTe,  or 

for  years,  according  to  the  fact.     The  right  to  the  possession 

follows  as  a  conclusion  of  law  from  the  seizin,  and  need  not  be 

alleged. 

The  possession  of  the  defendant  is  of  course  a  pleadable  and 
issuable  fact,  and  the  only  question  of  difficulty  arises  from  the 
supposed  necessity   of  negativing  its  possible   rightful  charac- 
ter.    That  negative  allegations,  which  are  not  required  to  be 
proved,  may  in  some  actions  be  necessary,  may  be  admitted; 
but  is  there  any  such  necessity  as  to  the  possession  of  the  de- 
fendant in  an  action  of  ejectment?     It  seems  to  us  that  the 
substance  of  a  complaint  in  ejectment  under  our  practice   is 
this:     "A  owns  certain  real  property,  or  some  interest  in  it; 
the  defendant  has  obtained  possession  of  it,  and  withholds  the 
possession  from  him."     If  the  defendant's  holding  rests  upon 
any  existing  right,  he  should  be  compelled  to  show  it  affirma- 
tively,  in  defense.     The   right   of  possession   accompanies  the 
^^^^jj^^^^^^     ownership,  and  from  the  allegation  of  the  fact  of  ownership — 
l^^Z^^i2^  which  is  the  allegation  of  seizin  in  "ordinary  language  "—the 
,.„..^  )  «>»       right  of  present  possession  is  presumed  as  a  matter  of  law.    We 
^jLk^su^,     dojot  think,  therefore,  any  allegation  beyond  that  of  posses- 
T^^^^^^^T^  sioQ  by  the  defendant  is  necessary,  except  that  he  withholds  the 
^^^^^^7^^  possession  from  the  plaintiff.     The  allegation  that  the  posses- 
fOT2^^^     sion  is  "wrongful  or  unlawful"  is  not  the  statement  of  a  fact, 
>juu»Q^"       but  of  a  conclusion  of  law.     The  words  are  mere  surplusage, 
and  though  they  do  not  vitiate,  they  do  no  good.     The  with- 
holding of  the  possession  from  one  who  is  seized  of  the  prem- 
ises, is  presumptively  adverse  to  his  right,  and  Avrongful.    It  is 


Sec.  1.]  PAYNE    V,    TREAD  WELL.  359 

by  force  of  this  presumptiou  that  the  plaintiff  can  rest,  in  the 
first  instance,  his  case  at  the  trial  upon  proof  of  his  seizin,  and 
of  the  possession  by  the  defendant.  From  these  facts,  when  es- 
tablished, the  law  implies  a  right  to  the  present  possession  in 
the  plaintiff,  and  a  holding  adverse  to  that  right  in  the  de- 
fendant. 

Where  the  plaintiff  has  been  in  possession  of  the  premises  for 
which  he  sues,  it  will  be  sufficient  for  him  to  allep;e  in  his  com- 
plaintsuch^possession,  and  the  entry,  onstpr  an^  continne(,l 
withholding  by  the  defendant.  Such  allegations  are  proper 
when  they  correspond  with  the  facts,  but  they  are  not  essential, 
as  is  thought  by  many  members  of  the  bar.  In  this  state,  the 
possession  does  not  always  accompany  the  legal  title.  The 
statute  authorizes  a  sale  and  conveyance  of  land  held  adversely 
by  third  persons;  and  the  legal  title  is  frequently  held  by  par- 
ties who  never  had  the  possession. 

In  the  Courts  of  New  York — and  it  is  well  known  that  the 
l*ractice  Act  was  taken  principally  from  the  code  of  procedure 
of  that  State — there  was  at  one  time  some  conflict  of  opinion 
as  to  what  were  sufficient  allegations  in  a  complaint  in  eject- 
ment under  the  code.  It  is  now,  however,  settled  by  the  Su- 
preme Court  of  that  State  substantially  in  accordance  with  the 
views  we  have  expressed.  In  Ensign  v.  Sherman  (14  How. 
I*rac.  439)  the  plaintiff  averred  in  her  complaint  that  she  had 
lawful  title  as  the  owner  in  fee  simple  to  the  real  estate  in  con- 
troversy, which  was  described;  that  the  defendant  was  in  pos- 
session of  it,  and  unlawfully  withheld  possession  thereof  from 
her,  and  on  demurrer  the  complaint  was  held  sufficient.  Walter 
V.  Lockwood  (23  Barb.  228)  is  to  the  same  effect. 

In  Sanders  v.  Leavy  (16  How.  Prac.  308)  the  complaint  was 
similar  to  the  complaint  in  the  cases  cited,  and  was  demurred  to 
on  the  ground  that  it  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action ;  because  first,  it  did  not  allege  that  the  plain- 
tiff or  his  grantor  was  ever  in  possession;  and  second,  it  did 
not  allege  that  such  possession  was  disturbed,  and  they  were 
evicted  by  the  defendant,  his  grantors  or  predecessors.  And  it 
was  contended  on  the  argument,  as  in  the  case  at  bar,  that  the 
allegations  as  to  the  plaintiff's  title  and  the  defendant's  pos- 
session were  not  averments  of  facts,  but  of  conclusions  of  law; 
hut  the  Court  held  the  complaint  sufficient,  and  gave  judgment 
against  the  demurrer.  "To  recover  real  estate,"  said  Mr.  Jus- 
tiee  Ingrahara,  in  delivering  the  opinion,  "what  is  it  necessary 


360  THE  COMPLAINT.  [CUAP.  111. 

for  the  plaintill  to  prove?  Two  things:  lirst,  that  he  .is  the 
owner  of  the  property;  secondly,  that  the  defendant  withholds 
from  him  the  possession  without  ri^'ht.  Both  facts  are  plainly 
averred  in  the  complaint."  The  designation  of  the  withholding 
of  the  possession  by  the  defendant,  in  the  cases  cited,  as  unlaw- 
ful, is  not  considered  as  constituting  any  valid  ground  of  objec- 
tion. In  Sanders  v.  Leavy  the  attention  of  the  Court  was 
specially  directed,  in  the  argument  of  counsel,  to  this  mode  of 
characterizing  the  act.  For  the  reasons  we  have  already  stated, 
we  consider  it  unnecessary  to  give  it  any  character  by  special 
designation;  for,  being  against  one  who  is  seized  of  the  prem- 
ises, it  is  presumptively  adverse  and  wrongful.  To  allege  that 
it  is  unlawful,  is  merely  to  state  that  which  follows  under  the 
circumstances  as  a  conclusion  of  law  from  the  act  itself. 

The  decisions  of  this  court  in  respect  to  the  necessary  allega- 
tions of  a  complaint  in  ejectment,  have  not  been  uniform,  and. 
perhaps,  on  no  one  subject  of  pleading  is  there  so  much  embar- 
rassment felt  by  the  profession  in  consequence.  In  Gladwin  et 
al.  V.  Stebbins  (reported  as  Goodwin  et  al.  v.  Stebbins,  in  2 
Cal.,  105)  the  complaint  averred  that  the  plaintiffs  were  "law- 
fully entitled  to  the  possession  of  the  premises,"  and  the  Court 
held,  Mr.  Justice  Ileydenfeldt  delivering  the  opinion,  that  the 
allegation  was  of  a  material  fact  and  therefore  sufficient.  In 
this  respect  we  think  the  opinion  cannot  be  sustained.  The 
averment  is  clearly  a  mere  statement  of  a  conclusion  of  law. 
In  Payne  et  al.  v.  Treadwell  (5  Cal.,  310)  the  complaint  alleged. 
that  the  plaintiffs  had  "lawful  title  as  owners  in  fee  simple  of 
the  premises,"  and  "that  the  defendant  is  in  possession  and 
unlawfully  withholds  the  same;"  and  on  demurrer  the  Court 
held  the  complaint  insufficient.  "Notwithstanding,"  said  Chief 
Justice  Murray,  in  delivering  the  opinion,  "our  statute  has 
dispensed  with  the  old  form  of  pleading,  and  it  is  no  longer 
necessary  to  allege  a  fictitious  demise,  etc.,  still,  I  apprehend 
that  facts  sufficient  must  be  pleaded  to  show  plaintiff's  right  to 
recover,  and  it  will  not  do  to  state  conclusions  of  law  in  place 
thereof.  The  allegation,  that  the  defendant  is  in  possession, 
and  unlawfully  withholds  the  premises,  is  insufficient;  it  is  a 
conclusion  of  law  drawn  from  the  character  of  defendant's  pos- 
session, the  circumstances  of  which  should  be  stated." 

The  decision,  as  is  apparent,  does  not  relate  to  the  allegation 
as  to  the  plaintiff's  title,  notwithstanding  the  general  observa- 
tions of  the  Chief  Justice;  it  applies  only  to  the  allegation  as 


Sec.  1.]  PAYNE    V.    TREAD  WELL,  361 

to  the  withholding  of  the  possession  by  the  defendant.  So  far 
as  this  was  alleged  to  have  been  unlawful,  the  allegation  was  of 
a  conclusion  of  law.  But  the  giving  of  a  certain  character  to 
the  withholding,  as  unlawful,  did  not  change  the  material  fact, 
that  the  possession  was  withheld;  and  this,  as  we  have  seen, 
taken  in  connection  with  the  previous  allegations  of  title  in  tne 
plaintiff,  and  possession  by  the  defendant,  was  sufficient.  A 
more  particular  statement  of  "the  circumstances"  of  the  de- 
fendant's possession  or  withholding,  is  not  necessary  under  our 
system  of  practice.  The  decision,  in  this  respect,  has  tended  to 
produce  inconvenience  to  practitioners,  and  prolixity  in  plead- 
ing, and  we  have  no  hesitation  in  overruling  it. 

In  Gregory  v.  Haynes  et  al.  (October  term,  1859,  No.  2,148) 
it  was  held,  that  the  findings  by  the  Court  below — that  one  of 
the  defendants  and  not  the  plaintiff  was  the  owner,  and  entitled 
to  the  possession  of  the  property  in  controversy,  and  that  the 
defendants  did  not  unlawfully  detain  the  same  from  the  plain- 
tiff— would  not  support  the  judgment,  and  the  decision  was 
based  upon  the  ground,  that  the  ownership  and  right  of  posses- 
sion were  not  facts,  in  the  legal  sense  of  that  term,  but  con- 
clusions of  law.  We  have  had  great  doubt  of  the  correctness^  Ck^ws*  o-^ 
of  this  decision,  ever  since  it  was  rendered,  and  upon  the  exam- 
ination which  we  have  given  to  the  subject,  in  considering  the 
case  at  bar,  we  are  satisfied  that  we  erred,  and  are  glad  we 
have  an  opportunity,  at  so  early  a  day,  of  correcting  our  error. 
The  fact  was  found,  that  one  of  the  defendants  was  the  owner 
of  the  premises  in  controversy,  and  that  fact  alone  was  sufficient 
to  support  the  judgment  against  the  plaintiff,  nothing  else 
having  been  found  to  qualify  the  right  to  the  possession  which 
accompanies  the  title.  The  balance  of  the  findings  might  have 
been  treated  as  surplusage.  The  claim  of  the  plaintiff  having 
been  thus  disposed  of,  it  was  unnecessary  to  find  as  to  the  char- 
acter of  the  defendant's  detention  of  the  premises. 

In  Boles  v.  Johnston  et  al.  (January  term,  1860)  the  opinion 
states  that  the  substantial  averments  of  the  complaint  were  only 
that  the  plaintiffs  were  the  owners  of  the  property  in  question, 
and  that  the  defendant  was  in  possession  of  it.  It  does  not 
state  that  there  was  any  averment  that  the  possession  was  with- 
held from  the  plaintiff.  If  such  averment  were  in  fact  made 
in  the  complaint,  the  decision  cannot  be  sustained. 

It  follows,  from  the  views  we  have  expressed,  that  the  com^ 
plWt_vn_t-hp'  case  at  bar  is  sufTiqient.    It  avers  that  the  plaintiffs^ 


;w3Ly-o  iiJiJ^ 


3G2 


TUE  COMPLAINT. 


[ClIAP.  III. 


.-Si^^^w"*'  \M-  are  the  owners  in  fee,  as  tenants  in  common,  of  the  premises j 
that  tne  defendants  are  in  possesion  of  the  same,  and  withhold 
J:he  possession  thereof  from  the  plaintiffs.  "Whatever  is  alle^^ed 
beyond  these  averments  is  immaterial,  and  may  be  stricken  out. 
The  facts  essential  to  a  good  complaint  are  stated,  and  the  addi- 
tional allegation  of  lawful  right  and  title  in  the  plaintiff,  and 
the  designation  of  "wrongful"  and  ** unlawful"  applied  to  the 
possession  and  withholding  of  the  defendant,  though  unneces- 
sary, do  not  vitiate  the  pleading;  and  the  demurrer  was  prop- 
erly overruled.*  . 


^. 


SMITH  v.  DEAN. 

19  Mo.,  63.     \18r>3.] 

Gamble,  Judge,  delivered  the  opinion  of  the  court: 
The  plaintiffs  claim  to  recover  on  a  bond  made  by  the  defend- 
ant. Dean,  payable  to  one  Crupper.  They  allege  that  they  are 
the  legal  holders  of  the  bond,  as  trustees  of  Crupper,  for  the 
benefit  of  his  creditors.  The  bond  was  payable  on  the  2d  of 
September,   1840.     There   is   no  allegation  that   the  bond  was 


,fvC-*A  ^*'^'A<>"  assigned  to  the  plaintiffs.  The  petition  was  demurred  to  and 
the  demurrer  was  sustained.  Two  questions  are  presented  on 
the  demurrer.  1.  Whether  the  title  of  the  plaintiffs  to  the 
bond  is  sufficiently  stated  in  the  petition.  2.  Whether  the  peti- 
tion does  not  show  that  the  action  on  the  bond  is  barred  by  the 
statute  of  limitations. 

1.  We  will  not  say  how  far  the  act  requiring  the  assignment 
of  bonds  and  notes  to  be  by  indorsement  thereon,  in  order  to 
enable  the  assignee  to  sue  in  his  own  name,  is  affected  by  the 
code  of  practice,  which  abolishes  the  distinction  between  law  and 
equity,  and  requires  all  suits  to  be  commenced  and  prosecuted 
in  the  name  of  the  real  party  in  interest.  But  if  an  assignee,^ 
or  the  person  beneficially  interested  in  a  bond  may  sue  thereon, 
without  stating  an  indorsement,  he  must  still  state  his  title  in 


^^^^^Z.^.^.Mi^^  his  petition.     To  state  that  he  is  the  legal  holder,  is  to  state  a 
i.t:  ^^J'-*^"^'-^  •    conclusion  of  law  from  facts  that  are  traversable.     He  musty 


State  facts  that  give  him  the  title  to  the  bond,  when,  upon  its  I 

(Ownership  of  personal 


♦See  also  Grewell  y.  Walden,  23  Cal.  165 
property.) 


Sec.  1.]  SMITH  V.  dean.  363 

own  face,  the  title  appears  to  be  in  another./  The  obligation  of 
the  defendant  was,  to  pay  money  to  Crupper.  By  what  facts 
did  he  become  bound  to  pay  it  to  the  plaintiffs?  The  petition 
fails  to  state  the  facts.  The  petition  says  the  plaintiffs  are  the 
legal  holders,  as  trustees  for  Crupper,  for  the  benefit  of  his 
creditors.  This  is  no  statement  of  any  act  done  by  Crupper 
transferring  the  bond.  The  plaintiffs  may  be  constituted  such 
trustees  by  the  act  of  Crupper,  or  if  the  transaction  occurred 
in  another  state,  they  may  be  trustees  of  an  insolvent  debtor, 
appointed  by  law.  The  petition  is,  in  this  respect,  defective. 
*     *     * 

The  judgment  is,  with  the  concurrence  of  the  other  judges, 
affirmed.  ^      ^^^ 


McCAUGIIEY  V.  SCIIUETTE. 

117  Cal.,  223.      [1896.] 

Searls,  C.  This  is  an  action  to  recover  possession  from  the  «e,.v^^,c3u>~o/3S; 
defendants,  who  are  appellants  here,  of  lots  A,  B,  C,  J,  K,  and  ^5^^,,,;^^.  -wv«J 
L  in  block  131  of  Horton  's  addition  to  San  Diego,  county  of  Wo  "olV  *< 
San  Diego,  state  of  California.  Plaintiff  had  judgment,  from  '^  ^^»^^  ^ 
which  judgment,  and  from  an  order  denying  their  motion  for  a  ^  ^TT^ 
new  trial,  defendants  appeal.  •^.i.^.si.   ^u 

The  complaint  was  demurred  to  upon  the  ground,  among  jT/Ty^T^ 
others,  that  it  does  not  state  facts  sufficient  to  constitute  a  cause  ■■^^*^^''''-^- 
of  action.  We  think  the  demurrer  should  have  been  sustained. 
The  complaint  may  be  summarized  thus:  (1)  December  22, 
1891,  defendants  made  their  promissory  note  to  plaintiff  for 
$2,000,  and  to  secure  the  payment  thereof  executed  a  mortgage 
upon  the  lots  of  land  sought  to  be  recovered  in  this  action.  (2) 
Afterwards,  and  on  the  22d  day  of  March,  1893,  plaintiff  and 
defendants  entered  into  an  agreement  by  the  terms  of  which 
said  defendants  agreed  to  convey  to  plaintiff,  and  the  latter 
agreed  to  take,  said  real  property  in  full  payment  of  the  note, 
and  to  release  defendants  from  liability  thereon,  and  deliver 
the  same  up  to  defendants,  and  to  discharge  of  record  the  mort- 
gage. (3)  That  on  the  23d  day  of  December,  1893,  defendants 
delivered  to  plaintiff'  their  grant  deed  of  said  premises,  and  the 
latter  delivered  up  the  note  and  discharged  the  mortgage  of 
record.     Said  deed  from  defendants  to   plaintiff  and  the  note 


364  THE  CUMPUVJKT.  [CllAl'.  111. 

and  mortgage  arc  made  part  of  the  complaint.  (4)  At  the  date 
of  the  delivery  of  the  deed  there  was  $2,501.28  due  on  the 
note,  and  the  deed  was  made  in  payment  thereof.  (5)  Defend- 
ants are  in  possession  of  the  premises,  and  plaintiff  has  de- 
manded possession  thereof,  which  said  defendants  refused  to 
deliver  up,  and  exclude  plaintiff  therefrom  against  his  will  and 
right._  AVhereforc  he  demands  judgment  for  the  delivery  of 
possession  of  said  premises,  etc.  It  is  a  fundamental  rule  of 
rsr^^^^*^  \j»J^  our  code  pleading  that  ultimate,  and  not  probative,  facts  are  to 
»^^^  V>«^  be  averred   in  a  pleading.     Miles  v.  McDermott.  31   Cal..'  271. 

^^^'--*^-  In  Thomas  v.  DesnioMTTS  Cal.,  426,  it  was  said,  in  substance, 

that,  where  a  complaint  merely  states  the  evidence  from  which 
utimate   facts   are   deducible,   a   demurrer  lies.       In    Siter   v. 
Jewett,  33  Cal.,  92,  it  was  held  that  averments  in  a  complaint 
of  the  facts  constituting  a  deraignment  of  title  are  but  aver- 
ments of  evidence,  and  are  not  admitted  by  a  failure  to  deny 
them  in  the  answer.    Recoullat  v.  Rene,  32  Cal.,  450,  is  to  like 
effect.     In  Gates  v.  Salmon,  46  Cal.,  361,  it  was  held  that  an 
allegation  in  a  complaint  that  B.   executed  an  instrument  in 
writing,  purporting  to  convey  to  T.  a  tract  of  land,  which  is 
recorded  (stating  where),  is  a  mere  allegation  of  evidence,  and 
may  be  disregarded  as  surplusage.     Such  evidentiary  matters 
should  be  stricken  out  in  an  action  of  ejectment.     Wilson  v. 
Cleaveland,  30  Cal.,  192.     See,  also,  San  Joaquin  Co.  v.  Budd, 
96  Cal.,  47    (30  Pac.  967).     It  will  be  observed  that  in  the 
>.  dsSji^  vh>«-o  complaint  in  the  present  case  there  is  no  averment  of  seisin^ 
KyA-*-^*^^-*^    Oi_ownership,   or  possession,  or  right  of  possession  to  the  de- 
j^  ^v,^  ov^>^    manded  premises,  but  the  pleader  contents  himself  with  a  state- 
^^^""-•^  .        ment~of  evidentiary  facts,  which,  if  proven  at  the  trial,  would 
'  t^^^^ '   authorize  the  court  in  finding  the  ultimate  fact  of  ownership 
-a.A    o-v>rw~    and  right  to  possession  m  the  plaintiff.      In  Frederick  v.  Tracy, 
'S^  *-o  owv^  98  Cal,  658  (33  Pac.  750),  it  was  saTd  of  such  a  pleading  that 
ikAAA-*3L*-^:^^'it  was  insufficient,  and  that  a  complaint  which  stated  only  facts 
from  which  the  ultimate  fact  might  be  deduced  was  subject  to 
a  demurrer.     In  City  of  Los  Angeles  v.  Signoret,  50  Cal.,  298, 
the  action  was  to  enforce  a  lien  for  the  construction  of  a  sewer. 
The  complaint  referred  to  an  exhibit,  attached  to  and  made  a 
part  thereof,  for  particulars,  whichx-€xhibit  recited  the  various 
steps  necessary  to  create  the  lien,  but  on  demurrer  the  pleading 
'^^^^'^^J:^  was  held   insufficient.     The   complaint  here   is  argumentative : 
^  that  IS  to  say,  the  affirmative  existence  of  the  ultimate  fact  is 

left  to  inference  or  argument.     Such  pleading  was  bad  at  com- 


Sec.  1.]  m'caughey  V.  SCHUETTE.  365 

mon  law,  and  is  none  the  less  so  under  our  code  system.  To  '^^'}^  "^^^"^ 
uphold  such  a  pleading  is  to  encourage  prolixity,  and  a  wide  '9'^>«**-^  " 
departure  from  that  definiteness,  certainty,  and  perspicuity 
which  it  was  one  of  the  paramount  objects  sought  to  be  en- 
forced by  the  code  system  of  pleading,  and  that,  too,  with  no 
resultant  effect,  except  to  incumber  the  record  with  verbiage, 
and  enhance  the  cost  of  litigation.  We  recommend  that  the 
judgment  and  order  appealed  from  be  reversed,  and  that  the 
court  below  be  directed  to  sustain  the  demurrer  to  plaintiff's 
complaint,  and  that  he  have  leave  to  amend. 

I  concur*    Britt,  C. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  and  order  appealed  from  are  reversed,  and  the 
court  below  directed  to  sustain  the  demurrer  to  plaintiff's  com- 
plaint, and  that  he  have  leave  to  amend.      ^ 


CLARK  V.  C,  M.  &  ST.  P.  R.  R.  CO. 

28   Minn.,   69.     [1881.] 

Mitchell,  J.     This  is  an  appeal  from  an  order  sustaining  a 
demurrer  to  the  complaint.     The  ground  of  demurrer  was  that  ^^^j^^^  y^^ 
the  complainUlid  not  state  facts  sufficient  to  constitute  a  cause  ^ 
of  action.    The  here  material  allegations  of  the  complaint  are  as, 
follows:    "That  on  the  6th  of  September,  1880,  the  servant  of  ^ 
the  plaintiff  was  lawfully  travelling  in  a  wagon  drawn  by  two 
horses,  all  the  property  of  the  plaintiff,  along  the  public  high- 
way in  the  town  of  Carlston,  in  the  county  of  Freeborn,  which 
public  hiwhway  crosses  the  railroad  operated  by  said  defend- 
ants near  the  section  line  between  sections  29  and  32  in  said 
township;  that  as  said  servant  of  this  plaintiff   reached  said 
crossing  the  defendants  herein,  by  the  culpable  carelessness,  neg- 
ligence, unskillfnlness  and  mismanagement  of  said  defendants 
and  their  employees,  wrongfully  run  a  locomotive,  with  a  train 
of  cars  thereto  attached,  used  and  employed  by  defendants  in 
operating  said  road,  against  plaintiff's  said  horses,  and  threw 
them  down,  killing  one  of  them  immediately,  and  so  severely  in- 
juring the  other  as  to  render  him  practically  worthless." 

It  is  urged  that  it  is  not  sufficient  to  allege  that  an  act  was 
done  negligently  or  carelessly;  that  this  is  merely  a  conclusion 


g(3G  THE  COMPLAINT.  [Cil-VP.  III. 

of  law,  and  not  a  statement  of  an  issuable  fact;  that  the  physi- 
cal facts  constitutinj,'  the  negligence  must  be  alleged.  It  is,  of 
course,  an  elementarj'  rule  of  pleading  that  facts,  and  not  mere 
conclusions  of  law,  are  to  be  pleaded.  But  this  rule  does  nnt 
limit  the  pleader  to  the  statement  of  pure  matters  of  fact 
unmixed  w^ith  any  matter  of  law.  When  a  pleader  alleges  title 
to  or  ownership  of  property,  or  the  execution  of  a  deed  in  the 
usual  form,  these  are  not  statements  of  pure  facts.  They  are 
all  conclusions  from  certain  probative  or  evidential  facts  not 
stated.  They  are  in  part  conclusions  of  law  and  in  part  state- 
ments of  facts,  or  rather  the  ultimate  facts  drawn  from  these 
probative  or  evidential  facts  not  stated;  yet,  these  forms  are 
universally  held  to  be  good  pleading.  Some  latitude  therefore 
must  be  given  to  term  "facts"  when  used  in  a  rule  of  pleading. 
It  must  of  necessity  include  many  allegations  which  are  mixed 
conclusions  of  law  and  statements  of  facts,  otherwise  pleadings 
would  become  intolerably  prolix,  and  mere  statements  of  the 
evidence.  Hence,  it  has  become  a  rule  of  pleading  that  while 
it  is  not  allowable  to  allege  a  mere  conclusion  of  law  containing 
no  element  of  fact,  yet  it  is  proper,  not  only  to  plead  the  ulti- 
mate fact  inferable  from  certain  other  facts,  but  also  to  plead 
anything  which,  according  to  the  common  and  ordinary  use  of 
language,  amounts  to  a  mixed  statement  of  facts,  and  of  a  legal 
conclusion.  It  may  not  be  possible  to  formulate  a  definition 
that  will  always  describe  what  is  a  mere  conclusion  of  law,  so 
as  to  distinguish  it  from  a  pleadable,  ultimate  fact,  or  that  will 
define  how  great  an  infusion  of  conclusions  of  law  will  be 
allowed  to  enter  into  the  composition  of  a  pleadable  fact.  Prece- 
dent and  analogy  are  our  only  guides.  And  it  is  undoubtedly 
true  that  there  will  be  found  a  want  of  entire  judicial  harmony 
in  the  adjudicated  cases  as  to  what  are  statements  of  fact  and 
what  are  mere  conclusions  of  law.  And  in  holding  one  class 
.  of  inferences  as  facts  to  be  pleaded,  and  another  as  conclusions 
'  of  law  to  be  avoided,  courts  may  have  been  often  governed  more 
by  precedent  than  by  a  substantial  difference  in  principle.  But 
-^.^■^  it  has  been  quite  generally  held  that  the  question  of  negligence^ 
\/y  in  a  particular  case  is  one  of  mingled  law  and  fact ;  that  when 

"o*^  fl^pAi^  .^g  speak  of  an  act  as  negligent  or  careless,  according  to  the 
"  *N»  ^^"^  common  use  of  language,  we  state,  not  simply  a  conclusion  of 
law,  but  likewise  state  an  ultimate  fact  inferable  from  certain 
nthpr  facts  not  stated. 

Therefore,   it  has  been   generally   settled  by  precedent  and 


Jc&  V»^Jk>^Jl 


Sec.  1.]  CLARK  V.  C.^  M.  &  ST.  p.  R.  R.  CO.  367 

authority  that  a  general  allegation  of  nedigepo-ft  or  carelessness. 
as  applied  to  the  act  of  a  party,  is  not  a  rnpre  eonelusJon  QJ  kw^_ 
but  is  a  statement  of  an  ultimate  fact  allowed  to  be  pleadciL  ^ 
Such  a  general  form  ot'  alleging  negligence,  seems  to  have  been 
permissible  in  common  law  pleading.  Some  of  the  forms  of  dec- 
larations given  by  Chitty,  when  stripped  of  mere  superfluous 
verbiage,  amount  to  nothing  more  than  this.  See  2  Chitty  on 
Pleading,  650;  also  Bliss  on  Code  Pleading,  §211;  Grinde  v. 
C,  M.  &  St.  P.  R.  R.  Co.,  42  Iowa,  377 ;  Oldfield  v.  N.  Y.  &  H. 
R.  R.  Co.,  14  N.  Y.,  310. 

Therefore,  while  the  court  on  motion  would,  on  proper  show- 
ing, doubtless  have  the  right  to  require  this  complaint  to  be 
made  more  definite,  yet  we  think  it  was  not  demurrable  on  the 
grounds  stated. 

Another  objection  made  to  this  complaint  is  that  from  the 
facts  stated  it  appears  that  plaintiff  himself  was  guilty  of  con- 
tributory negligence.  It  is  the  settled  law  of  this  state  that 
contributory  negligence  of  the  plaintiff  is  matter  of  defence,  and 
that  plaintiff,  in  making  out  his  case,  need  not  prove  the  absence 
of  it.    Wilson  v.  N.  P.  R.  R.  Co.,  26  Minn.,  298. 

Hence  it  is  not  necessary  for  the  plaintiff  in  his  complaint 
to  negative  the  existence  of  a  contributory  negligence  on  his 
part.  It  is,  however,  doubtless  true  that  if  his  complaint  stated 
facts  which  showed  affirmatively  that  he  was  guilty  of  negli- 
gence which  contributed  to  the  injury,  the  complaint  would  be 
demurrable.  But  this  complaint  is  not  liable  to  any  such  objec- 
tion ;  it  alleges  that  his  team  was  lawfully  travelling  along  the 
highway  at  the  time  and  place  when  and  where  the  accident 
occurred.  It  did  not  allege  that  his  servant  did  not  look  out 
for  approaching  trains,  nor  does  it  appear  from  the  facts  stated 
that  he  could  have  seen  it  if  he  had  looked,  so  as  to  raise  a  pre- 
sumption that  he  failed  to  look.  The  remark  made  by  this  court  in 
Brown  v.  Railroad  Co.,  22  :\Iinn.,  168,  quoted  by  counsel,  was 
made  with  reference  to  the  facts  and  circumstances  of  that  case 
as  indisputably  disclosed  by  the  evidence. 

Ordered  reversed. 


368  THE  COMPLAINT.  [ChaF.  111. 

OMAHA  &  R.  V.  RY.  CO.  v.  WRIGHT. 
47  Neb.,  886.     [1896.] 

Irvine,  C.  The  defendants  in  error  brought  this  action 
against  the  railway  company  to  recover  damages  on  account  of 
cattle  belonging  to  them,  killed  and  injured  by  a  train  of  the 
railway  company.  The  petition,  while  it  is  in  one  count,  really 
alleges  or  attempts  to  allege  three  grounds  of  recovery:  First, 
that  a  gate  on  one  of  the  fences  along  the  right  of  way  was 
insufficient,  and  negligently  permitted  to  be  out  of  repair,  and 
that,  by  reason  of  those  facts,  the  cattle  got  upon  the  right  of 
way;  second,  that  after  they  got  upon  the  right  of  way,  their 
injury  resulted  from  the  careless  operation  of  the  train ;  third, 
that  the  railway  company,  after  the  stock  was  injured,  took 
possession  of  the  dead  bodies  and  the  injured  cattle,  and  refused 
to  permit  the  owner  to  retake  them, — that  is,  a  charge  of  con- 
version. The  answer  of  the  railway  company  was  a  series  of 
denials, — some  of  them  negatives  pregnant,  but  the  whole  effect 
practically  that  of  a  general  denial, — coupled  with  some  affirm- 
ative allegations  in  regard  to  the  security  of  the  gate  and  negli- 
gence on  the  part  of  the  plaintiffs.  From  a  verdict  and  judg- 
ment in  favor  of  the  plaintiffs  for  $569,  the  defendant  prose- 
cutes error.     *     *     * 

It  is  quite  clear,  under  the  instructions  of  the  court,  that  the 
verdict  turned  upon  the  negligence  of  the  railway  company  in 
operating  its  train,  whereby  the  cattle  were  killed  and  injured 
after  they  came  upon  the  right  of  way.  On  this  branch  of  the 
case,  the  allegations  of  the  petition  are  that  the  defendant,  "by 
its  agents  and  employees,  while  running  at  a  high  rate  of  speed, 
carelessly  and  negligently,  and  without  using  due  caution,  ran 
the  engine  and  train  of  cars  connected  therewith  and  attached 
thereto  over  and  upon  the  cattle  of  these  plaintiffs;  *  *  * 
that  the  said  defendant  carelessly  and  negligently,  by  its  em- 
ployees and  servants,  in  operating  said  train,  ran  their  said 
engine  and  train  in,  over,  and  upon  said  plaintiffs'  stock,  when, 
by  exercising  proper  care  and  skill  in  the  management  and 
handling  of  its  engine  and  train,  it  could  have  stopped  said 
train  long  before  striking  said  plaintiffs'  stock."  An  allega- 
tion of  negligence  or  want  of  care  is  like  an  allegation  of  fraud. 
It  is  a  bare  conclusion.  A  pleading  is  not  sufficient  which 
merely  in  general  terms  charges  a  want  of  due  care  or  negli- 


Sec.  1.]  OMAHA  &  R.  V.  RY.  CO.  V.  WRIGHT.  369 

gence.  It  is  necessHry  to  plead  the  facts  from  which  an  infer- 
ence "of  negligence  arises.  Railroad  Co.  v.  Grablin,  38  Neb.,  90 
(56  N.  W.,  796),  and  (57  N.  W.,  522);  Malm  v.  Thelin,  47 
Neb.,  686,  66  N.  W.,  650.  The  petition  merely  alleges  that  the 
defendant  negligently  ran  over  the  stock,  while  by  the  use  of 
proper  care  it  might  have  stopped  the  train  before  striking  the 

cattle.* 

Judgment  reversed. 


L.  &  N.  R.  R.  CO.  V.  WOLFE. 
80  Ky.,  82.     [1882.] 

Judge  Hargis  delivered  the  opinion  of  the  court. 

It  is  alleged  in  substance  by  the  appellee  that  there  was  a  hole 
in  the  platform  connected  with  the  appellant's  depot;  that  the 
opening,  and  its  dangerous  character,  were  known  to  the  appel- 
lant, but  it  negligently,  wantonly,  and  willfully,  failed  and 
refused  to  repair  it,  and  while  removing  a  box  of  freight  from 
said  depot  to  his  wagon,  having  necessarily  to  pass  over  said 
hole,  he  fell  into  it,  and  broke  the  left  patella  or  knee  cap  of 
his  leg,  for  which  he  prayed  damages. 

From  a  judgment,  upon  a  verdict  of  $2,000  in  favor  of  ap- 
pellee, the  appellant  prosecutes  this  appeal,  and  raises  the 
question,  first,  upon  the  pleadings,  that  the  facts  constituting 
contributory  negligence,  which  it  pleaded,  were  not  denied,  and 
therefore  no  verdict  or  judgment  should  have  been  rendered  in 
appellee's  behalf. 

The  allegation  of  the  answer  is,  ''that  the  plaintiff  had  full 
knowledge  of  such  defect,  and  with  his  eyes  wide  open,  and  in 
open  broad  daylight,  walked  into  said  hole,  and  by  his  own 
negligence  contributed  to  said  injury,  and  thereby  he  alone  is 
responsible  for  his  misfortune." 

To  this  the  appellee  replied,  that  "the  plaintiff,  Wm.  R. 
Wolfe,  for  reply  to  defendant's  answer,  denies  that  he  was 
guilty  of  any  negligence  at  or  before  the  time  of  the  injury 
complained  of  in  this  petition,  or  that  he  contributed  in  any 
way  by  his  negligence  to  the  occurrence  of  said  injury.  He 
denies  that  defendant  is  relieved  from  responsibility  for  their 


*But  see  C,  R.  I.  &  P.  Ry.  v.  O'Donnell,  101  N.  W.  1009. 
24 


370  THE  COMPLAINT.  [ClIAI'.  III. 

gross  and  willful  neylect  by  reason  of  any  negligence  on  the 
part  of  the  plaintilf." 

It  is  contended  by  counsel  that  the  reply  fails  to  deny  the 
substantive  facts  constituting  contributory  negligence,  and  only 
traverses  the  averment  of  negligence,  which  is  but  denying  a 
legal  conclusion. 

The  error  in  this  position  lies  in  the  assumption  that  the 
allegation  of  negligence  is  a  mere  legal  conclusion,  and  that  the 
supposed  substantive  facts  constitute  contributory  negligence, 
neither  of  which  is  true. 

Negli^^ence  is  the  ultimate  fact  to  be  pleaded,  and  it  forms 
part  of  the  act  from  w^hich  the  injury  arises,  or  by  which  con- 
tributoi-y  negligence  is  made  out.  It  is  the  absence  of  care  in 
the  performance  of  an  act,  and  is  not  merely  the  result  of  such 
absence,  but  the  absence  itselfTand  it  is  not,  therefore^  a  mere 
conclusion  of  law,  and  may  be  pleaded  generally.  Although  the 
apellee,  with  his  eyes  open  and  in  broad  daylight,  walked  into 
the  "hole,"  these  facts  alone  would  not  constitute  neglect,  but 
if  done  intentionally  or  negligently  they  would  do  so.  Nor 
does  the  fact  that  the  apellee  knew  the  "hole"  was  in  the 
"floor,"  when  added  to  those  named,  constitute  negligence,  as 
want  or  absence  of  care  must  be  averred  in  some  form,  as  it  is 
one  of  the  essential  facts  necessary  to  such  a  defense. 

The  issue  formed  by  the  reply  was  material.  (42  Iowa,  378; 
34  Mo.,  235;  14  N.  Y.,  310;  Bliss  on  Code  Pleading,  sec.  211.) 
*     *     * 

The  judgment  is  affirmed.  Cjc^-v.  ^x5Ux^-^  . 


^ 


X 


CEDERSON  V.  OREGON  R.  &  NAV.  CO. 

38  Ore,  343.     [1900.] 

This  is  an  action  for  the  recovery  of  damages  for  the  killing 
of  one  William  Cederson  through  the  alleged  negligent  acts  of 
the  defendant  company  in  operating  its  railroad.  The  com- 
plaint states,  among  other  things,  "that  on  the  4th  day  of 
November,  1896,  and  for  a  long  time  prior  thereto,  the  defend- 
ant was  engaged  in  the  operation  of  a  railway  from  Portland, 
Oregon,  to  Huntington,  in  the  same  state;  that  said  road  runs 
through  certain  property  belonging  to  the  Seufert  Bros.  Com- 


Sec.  1.]  CEDERSON   V.    OREGON    R.    &   N.    CO.  371 

pany,  a  few  miles  above  Dalles  city,  iu  said  state;  that  on  the 
said  4th  day  of  November,  1896,  the  said  deceased  was  in  the 
employ  of  said  Seufert  Bros.  Company,  and  that  on  said  day, 
while  passing  over  the  premises  of  said  Seufert  Bros.  Com- 
pany, from  the  eating  house  of  said  company,  where  he  took 
his  meals,  to  the  place  where  he  slept,  and  while  rightfully  and 
lawfully  going  across  the  premises  of  said  Seufert  Bros.  Com- 
pany, from  one  place  to  another,  as  he  had  a  right  to  do,  the 
said  defendant  was  running  one  of  its  trains  along  its  said  road 
in  close  proximity  to  where  the  said  plaintiff's  decedent  was 
walking;  that  in  running  and  oi)erating  said  train  along  said  . 

road   the    said    defendant    and    its    employees    negligently    and  ~?  i^/l^ ^ 

carelegsly  operated  over  said  road  a  truck  and  car  which  were  Co^,^  «-.»w-^ 
too  wide  for  said  track,  and  the  wheels  of  which  car,  and  the  '\<>^^ 
flanges  thereon,  were  cracked,  broken  and  unsafe,  and  so  negli- 
gently and  carelessly  operated  said  train,  and  the  engine  and 
cars  attached  thereto,  that  by  reason  of  said  negligent  and  care- 
less operation,  and  by  reason  of  said  truck  and  car  being  too 
wide  and  out  of  gauge  with  said  track,  and  by  reason  of  the 
bad,  broken,  and  cracked  condition  of  the  wheels  of  said  car, 
and  by  reason  of  all  of  said  things  combined,  said  car,  and 
other  cars  attached  to  the  same,  jumped  the  track,  while  pass- 
ing along  said  road,  at  a  point  opposite,  or  nearly  opposite, 
where  plaintiff's  decedent  was  walking,  as  hereinbefore  alleged, 
and  ran  and  was  thrown  upon  plaintiff's  said  decedent,  causing 
him  great  bodily  injury  and  death." 

The  defendant  moved  the  court  to  require  the  plaintiff  to  CL«-/vj^  '-•^-^ 
made  the  following  clause  of  the  complaint,  namely  (''and  so  ^  <rv^ -vn^-^ 
negligently  and  carelessly  operated  said  train,  and  the*  engine  ^^ 

and  cars  attached  thereto,  that  by  reason  of  said  negligent  and   •• 

careless  operation"),  more  definite  and  certain,  by  stating  the  ^'^'^^^'^ 
acts  and  thmgs  constituting  the  negligent  and  careless  operation 
of  the  said  train  or  engine  or  cars  attached  thereto.     *     *     * 
The  motion  was  overruled,  and  constitutes  one  of  the  assign- 
ments of  error. 

WOLVERTON,  J.      *      *      * 

Three  other  questions  are  presented,  which  arise  under  the 
pleading.  These  are  brought  upon  the  record  by  the  motion  to 
make  the  complaint  more  definite  and  certain,  and  by  objections 
to  the  introduction  of  testimony  at  the  trial.  It  may  be  pre- 
mised that,  where  the  sufficiency  of  the  complaint  is  drawn  in 
question,  upon  the  admission  of  evidence,  all  intendments  come 


372  THE  COMPLAINT.  [CllAI*.  HI. 

to  its  support,  whereas,  if  tested  by  a  demurrer,  it  must  be 
construed  most  strongly  against  the  pleader.  It  is  first  urged 
that  the  complaint  is  fatally  defective,  in  that  it  fails  to  state 
the  particular  acts  and  omissions  constituting  the  negligence 
which  conduced  to  the  injury  complained  of.  The  general,  and 
we  have  no  doubt  the  prevailing,  rule  upon  the  subject  is  that 
"a  declaration  specifying  the  act  the  commission  or  omission  of 
which  caused  the  injury,  and  averring  generally  that  it  was 
negligently  and  carelessly  done  or  omitted,  will  suffice."  The 
language  quoted  is  from  14  Enc.  PI.  &  Pr.  p.  334,  and  the  prop- 
osition is  abundantly  supported  by  the  authorities.  ' '  Negli- 
gence" is  treated  as  a  qualifying  term,  indicating  the  manner 
in  which  an  act  is  done,  and  not  as  a  mere  conclusion  of  law. 
Maxw.  Code,  PI.  251.  It  has  been  quite  generally  held  that 
the  question  of  negligence  in  a  particular  case  is  one  of  mingled 
law  and  fact,  and  that,  in  denoting  or  styling  an  act  as  care- 
less or  negligent,  we  signify,  according  to  common  understand- 
ing, not  simply  a  conclusion  of  law,  but  state  as  well  an  ulti- 
mate fact,  inferable  from  certain  other  facts  not  stated. 
''Therefore,"  says  Mr.  Justice  Mitchell  in  Clark  v.  Railway  Co., 
28  Minn.,  69,  (9  N.  W.  75),  "it  has  been  generally  settled  by 
precedent  and  authority  that  a  general  allegation  of  negligence 
or  carelessness,  as  applied  to  the  act  of  a  party,  is  not  a  mere 
conclusion  of  law,  but  is  a  statement  of  an  ultimate  fact  allowed 
to  be  pleaded."  The  statement  is  of  an  issuable  substantive 
fact,  by  reason  of  the  qualifying  sense  in  which  the  term  is  ap- 
'■o^-^Xy-*^  plied.  It  is  not  sufficient  to  pload  merely  that  the  plaintift 
■>"'»-  •^^^'    was  injured  by  the  negligence  of  the  defendant,  as  the  term 

r,^  ^  p ^^would  be  applied  to  no  one  act  of  either  commission  or  omis- 

"T^^*^^^      sion;  nor  is  it  good  pleading  to  say  that  the  defendant  did  an 

""^^  ^..>r-  "act  whereby  the  plaintiff  was  injured,  as  it  may  have  been  acci- 

'-j^^-j-   dental,   or  under  circumstances  which  would  not  render  him 

^^^"'^^  _        accountable.     13 ut  when  the  terms  ''negligence"  or  ''careless- 

^^^^I^  !lw,  ness"  are  applied  to  the  act  w^hich  conduces  to  the  injury,  then 

^     yi  tte^the  act  is  so  qualified  that  it  becomes  actionable^and  forms  a~ 

*«. '». osv-N -    basis  for  damages.     The  distinction  is  well  illustrated  m  two' 

i£^f^V^  cases  from  Indiana.     In  Railroad  Co.  v.  Dunlap,  29  Ind.,  426, 

x^  ^cX^ -^ATv^^the  averment  was  that  the  injury  was  done  "by  and  on  account 

.  hj^-^^>^-     of  the  gross  negligence  of  said  plaintiff,"  and  it  was  held  to  be 

bad  pleading.     But  in  Railroad  Co.  v.  Selby,  47  Ind.,  471,  an 

allegation  that  "the  track  of  said  railway  was  in  bad  condition 

ar.d  repair,  and  the  defendant,  by  its  servants  and  employees, 


Sec.  i.J  CEDERSON   V.   OREGON   R.    &   N.    CO.  373 

negligently,  unskillfully,  and  carelessly  conducted  and  ran  said 
train,"  whereby  injury  resulted,  was  held  to  be  good,  the  court 
saying:  "The  negligence  complained  of  in  the  present  case  re- 
lated to  the  condition  of  the  track  and  the  manner  in  which  the 
train  was  run  and  managed.  But  in  the  case  in  29  Ind.,  426,  no 
act  was  stated  to  which  the  negligence  averred  to  exist  could  be 
applied.  When  the  act  complained  of  is  sufficiently  stated,  it 
is  sufficient  to  aver  that  the  act  was  negligenlty  done,  without 
setting  out  in  detail  the  particulars  of  the  negligence."  When 
used  to  qualify  the  act  or  omission  complained  of,  the  question 
is  whether  or  not  the  act  is  such  a  one  as  is  alleged,  and  thus 
described,  and  upon  this  hinges  the  result.  "It  is  always  nec- 
essary," says  Mr.  Justice  Cooley,  in  Lucas  v.  Wattles,  49  Mich., 
380  (13  N.  W.  782),  "that  the  plaintiff  should  count  on  the 
negligence  he  relies  upon ;  but,  when  he  properly  avers  the  neg- 
ligence,  it  is  not  essential  that  he  should  set  out  the  facts  which 
go  to  establish  it.  JN  either  is  it  usual  to  do  so,  nor  would  it  com- 
monly be  prudent."  In  further  support  of  the  proposition,  see 
Clark  V.  Railway  Co.,  supra ;  Johnson  v.  Railway  Co.,  31  Minn., 
M83  (17  N.  W.  622)  ;  Rolseth  v.  Smith,  38  Minn.,  14  (35  N.  W. 
565);  Railway  Co.  v.  Jennings,  157  111.,  274  (41  N.  E.  629); 
Fitts  v.  Waldeck,  51  Wis.,  567  (8  N.  W.  363)  ;  Young  v.  Lynch, 
66  Wis.,  514  (29  N.  W.  224)  ;  Railroad  Co.  v.  Wolfe,  80  Ky., 
82;  Schneider  v.  Railway  Co.,  75  Mo.,  295;  Mack  v.  Railway 
Co.,  77  Mo.,  232 ;  Grinde  v.  Railway  Co.,  42  la.,  376. 

It  is  most  stoutly  contended,  however,  that  this  court  has 
decided  otherwise;  that  is  to  say  that  the  specific  facts  con- 
stituting the  negligence  should  be  stated.  At  first  blush,  one 
would  say  there  is  ground  for  the  contention,  but  a  careful 
scrutiny  of  the  cases  does  not  bear  it  out.  It  is  said  in  Wood- 
ward V.  Navigating  Co.,  18  Or.,  289  (22  Pac.  1076)  :— "It  is 
true,  in  some  jurisdictions  it  seems  to  be  held  sufficient  to  allege 
generally  that  the  injury  complained  of  was  carelessly  and 
negligently  inflicted  upon  the  plaintiff,  or  that,  by  reason  of  the 
carelessness  and  negligence  of  the  defendant,  the  plaintiff  was 
injured;  but  this  mode  of  statement  has  never  been  sanctioned 
or  approved  in  this  state,  is  at  variance  with  the  plain  require- 
ments of  the  code,  and  would  give  the  defendant  no  notice  of 
the  acts  claimed  to  be  negligent,  so  that  he  might  come  prepared 
to  meet  them."  And  in  McPherson  v.  Bridge  Co.,  20  Or.,  486 
(26  Pac.  560),  "The  plaintiff's  counsel  claims,  in  effect,  on 
the  argument  in  this  court,  that  a  general  allegation  of  negli- 


374  THE  COMPr.AINT.  [ClIAP.  III. 

gence  and  carelessness  was  sufficient.  But  that  contention  can- 
not be  sustained.  Such  allegation  does  not  charge  a  fact." 
Knathla  v.  Railway  Co.,  21  Or.,  136  (27  Pac,  91),  is  also  cited 
to  the  same  purpose.  It  is  quite  probable  that  the  language 
quoted  was  used  with  reference  to  the  general  statement  of 
negligence,  without  stating  an  act  or  omission,  with  the  quali- 
fication that  it  was  negligently  or  carelessly  done,  which  all  will 
admit  is  insufficient.  This  is  obvious  from  the  McPherson  Case, 
wherein  it  was  alleged  "that  while  he  (plaintiff)  was  so  engaged 
in  the  erection  of  said  tank  through  the  negligence  and  careless- 
ness of  said  defendants,  and  through  the  use  of  defective 
machinery  by  the  defendant,  *  *  *  the  said  timbers  em- 
ployed in  the  erection  of  said  tank  fell  upon  the  plaintiff." 
After  making  the  remark  above  attributed  to  it,  and  citing 
the  Woodward  Case,  the  court  further  observed,  "Thie  leaves 
nothing  upon  which  a  recovery  could  be  predicated  but  the 
charge  of  defective  machinery;"  thus  indicating  that  the  prior 
remarks  of  the  court  were  directed  to  the  general  charge  of 
negligence.  However  this  may  be,  the  question  was  not  involved 
in  either  case,  and  the  only  one  considered  in  that  relation  was 
whether  there  had  been  a  variance  between  the  proof  and  the 
pleadings.  Nor  does  the  Knahtla  case  support  the  proposition. 
The  question  there  was  whether  the  proof  was  in  support  of  the 
allegation  in  the  complaint,  and  the  one  under  consideration 
here  was  not  involved.  But  the  view  of  Mr.  Justice  Bean,  who 
wrote  the  opinion,  appears  to  be  in  harmony  with  the  view 
elsewhere  entertained.  He  says:  "Certainty  to  a  common 
intent  is  all  that  is  required,  and  this  is  attained  in  actions 
for  damages  resulting  from  negligence  when  the  neglect  of  duty 
relied  on  and  the  resultant  injury  are  described  with  sub- 
stantial accuracy."  Wild  v.  Railway  Co.,  21  Or.,  159  (27  Pac, 
954),  decided  within  a  month  of  the  Knahtla  case,  holds  to  the 
same  view.  The  allegation  there  was,  "that  while  the  plaintiff 
was  working  upon  or  about  said  car,  as  hereinbefore  alleged, 
the  defendant  failed  to  pro\ade,  preserve,  and  procure  a  safe 
place  for  him  to  work,  and  negligently  and  carelessly  caused 
and  permitted  a  locomotive  and  cars  then  upon  its  tracks  to 
run  up  against  the  car  upon  which  the  plaintiff  was  working," 
etc.;  and  it  was  held  that  the  gravamen  of  the  complaint  was 
in  carelessly  and  negligently  causing  and  permitting  a  locomo- 
tive and  cars  to  run  upon  and  against  the  car  occupied  by  the 
plaintiff,   whereby  he   was  injured,   which   allegation   w^as  de- 


Sec.  1.]  CEDERSON  V.  OREGON  R.  &  N.  CO.  375 

termined  to  be  amply  sufficient  to  support  the  action.  No  dif- 
ferent view  of  the  law  has  since  been  entertained  by  this  court, 
and  the  Woodward  and  ]\IcPherson  cases  have  never  been  treated 
as  holding  to  the  doctrine  now  attributed  to  them.  See  Lieual- 
lan  V.  Mosgrove,  33  Or.,  282  (54  Pac,  200,  664),  and  Jones  v. 
City  of  Portland,  35  Or.,  512  (58  Pac,  657).     *     *     * 

Judgment  affirmed. 

^  KING  V.  OREGON  SHORT  LINE  R.  R.  CO. 
6  Idaho,  306.     [1398.] 

This   action  was  brought  by  the  respondent  to  recover  the 
value  of  four  head  of  cattle  alleged  to  have  been  killed  by  appel- 
lant's locomotives  and  cars, — one  alleged  to  have  been  killed  on 
May  7,  1897;  one  on  May  10,  1897;  one  on  August  5,  1897;  and 
one  on  November  5,  1897.     The  killing  of  each  animal  is  set  up 
as  a  separate  cause  of  action.     The  third  paragraph  of  each 
cause  of  action,  which  contains  the  allegations  of  the  careless 
and  negligent  killing  of  said  stock,  is  couched  substantially  in  the 
same  language,  and  in  the  first  is  as  follows:    "That  the  defend- 
ant, by  its  agents  and  servants,  not  regarding  its  duty  in  that 
respect,  so  carelessly  and  negligently  ran  and  managed  its  loco-    ^^j^^^^ 
motives  and  cars,  that  the  same  ran  against,  upon,  and  over  said  "*" 
steer,  and  killed  and  destroyed  the  same,  to  the  damage  of  the 
plaintiff  in  the  sum  of  $18,  no  part  of  which  has  been  paid." 
The  total  value  of  the  four  head  is  alleged  to  have  been  $78.    To 
each  of  said  causes  of  action  the  defendant,  who  is  appellant 
here,  interposed  a  demurrer,  on  the  ground  of  uncertainty,  and 
distinctly  specifies  that  each  of  said  causes  of  action  is  uncertain 
in  several  particulars,  and  among  them  the  following:     (1)   It    '^^^►^^-n-^  *^ 
does  not  state  any  facts  constituting  negligence  or  carelessness  ^^^^^^   ~n^ 
on  the  part  of  any  agent  or  servant  of  the  defendant,  or  of  the  Ni'^Y^>-''-w 
defendant;  (2)  it  does  not  state  any  act  or  omission  on  the  part'"^'^'^^   .»j4->— 
of  any  agent  or  servant  of  the  defendant,  or  of  the  defendant,  "X  <KtJy^^^ 
or   of  any   one,   constituting  negligence   or  carelessness.     The  vs^ 


demurrer  was  overruled,  and  appellant  declined  to  answer  or  w-o-^-^j^v/.^-^ 
further  plead,  whereupon  judgment  was  given  and  entered  in  N^t-o-xX-v  ~  5 
favor  of  the  plaintiff.    This  appeal  is  from  the  judgment.  VC^^-o^^  ^  a< 

Sullivan,  C.  J.   (after  stating  the  facts.)     There  is  but  one    Wv-..v-.OD^-> 
question  presented  by  the  record,  and  that  is:    In  actions  based 


.376  THE  COMPLAINT.  [CUAP.  III. 

on  negligence,  is  it  sufficient  to  plead  negligence  generally,  or 
must  the  specific  acts  of  commission  or  omission  be  specifically 
set  out  in  the  complaint?     It  is  conceded  by  counsel  for  appel- 
lant that  the  complaint  in  this  action  would  be  good  as  against 
a  general  demurrer,  towit,  a  demurrer  on  the  ground  that  the 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action,  and  that  it  is  sufficient  to  sustain  a  verdict  or  judg- 
ment, unless  attacked  by  a  demurrer  on  the  ground  of  uncer- 
tainty, specifically  setting  forth  wherein  it  is  uncertain.    While 
counsel  for  the  respondent  concede  that,  if  the  facts  are  suffi- 
ciently within  the  knowledge  of  the  pleader,  it  would  be  better 
pleading   to   plead   them,   they   also   contend  that   the   rule  of 
pleading  negligence  is  so  thoroughly  settled  in  this  country  that 
it  is  no  longer  an  open  question,  and  the  rule  is  to  the  effect  that 
it  is  unnecessary  to  plead  the  particular  acts  or  omissions  that 
constitute  the  negligence,  and  cite  Bliss,  Code  PI.    (3d  Ed.)   § 
211a;  Cunningham  v.  R.  R.  Co.   (Cal.)  47  Pac,  452;  Stephen- 
son V.  Southern  Pac.  Co.    (Cal.)    34  Pac,  618;  and  numerous 
other  cases.       It   is  said  in  Bliss,  Code  PI.    (3d  Ed.)    §  211a, 
that  a  general  allegation  of  negligence  is  allowed;  that  negli- 
gence is  the  ultimate  fact  to  be  pleaded,  and  is  not  a  conclu- 
sion.   Referring  to  negligence  and  fraud,  it  is  said:    "The  law 
draws  the  conclusion  in  both  cases,  yet  we  can  see  that  the  neg- 
ligence possesses  more  of  the  element  of  fact  than  does  fraud. 

*  *  *  We  do  not  infer  it  as  a  legal  conclusion  from  certain 
facts,  but  it  is  a  fact  itself  inferable  from  certain  evidence. 

*  *  *  Fraud  will  never  be  presumed.  The  facts  from  which 
it  is  inferred  must  be  shown. ' '  And,  after  giving  some  examples 
and  citing  authorities,  the  author  concludes  said  section  as  fol- 
lows :  ' '  Some  negligence  is  presumed,  and  it  must,  of  necessity, 
be  alleged  generally."  Simply  because  "some  negligence  will 
be  presumed,"  certain  facts  being  shown,  we  are  unable  to  com- 
prehend that  for  that  reason  "negligence  must,  of  necessity, 
be  alleged  generally."  If  certain  facts  must  be  shown  before 
negligence  will  be  presumed,  the  plaintiff  must  know  these  facts 
before  he  can  show  them;  and  if  he  knows  them,  he  certainly 
can  allege  them,  and  thus  inform  the  defendant  of  the  specific 
facts  from  which  the  conclusion  of  negligence  is  drawn.  If^ 
under  the  laws  of  this  state,  the  killing  of  a  steer  by  a  locomotive^ 
engine  or  train  of  cars  were  made  prima  facie  evidence  of  nogli- 
gence,  then,  such  killing  being  alleged  in  the  complaint,  a 
eause  of  action  would  be  stated.     But,  under  the  statutes  of 


Sec,  1.]  KING  V.   OREGON  SHORT   LINE,  377 

this  state,  something  more  than  thp  killing  mnst.  ho.  shown  in 
order_to  entitle  the  plaintiff  to  recover.  He  must  not  only 
show  the^  killing,  but  he  must  show  the  certain  other  fact  or  facts 
fro^jwhich  the  conclusion  of  negligence  will  be  inferred  or 
drawnT  And,  if  a  plaintiff'  must  show  acts  or  omissions  from 
which  negligence  will  be  inferred  before  he  can  recover,  it  cer- 
tainly is  no  hardship  on  him,  nor  unreasonable,  to  require  him 
to  allege  them.  Subdivision  2,  §  4168,  Rev,  Sts.,  provides  that 
the  complaint  must  contain  "a  statement  of  the  facts  constitut- 
ing the  cause  of  action  in  ordinary  and  concise  language."  The 
causes  of  action  in  this  case  are  based  on  the  negligent  killing 
of  certain  animals.  Under  said  provision  of  the  statute,  the 
complaint  must  contain  a  statement  of  the  facts  constituting 
the  negligent  killing,  in  "ordinary  and  concise  language."  In 
Stephenson  v.  Southern  Pacific  Railroad  Company,  supra,  the 
facts  constituting  the  negligence  were  stated  in  the  complaint 
in  ordinary  and  concise  language.  The  court,  after  stating 
that  at  common  lav>'  it  was  necessary,  in  a  declaration  for  negli- 
gence, to  set  out  the  facts,  in  detail,  constituting  the  basis  of 
the  action,  says:  "In  adopting  what  is  known  as  'the  code  sys- 
tem of  pleading,'  courts  in  most  of  the  states  have  excepted 
from  the  general  rule,  requiring  a  complaint  to  state  the  facts 
constituting  the  cause  of  action  in  ordinary  and  concise  lan- 
guage, cases  founded  upon  negligence,  or,  rather,  they  have  so 
far  modified  the  rule  as  to  permit  the  plaintiff  to  state  the  negli- 
gence in  general  terms,  without  stating  the  facts  constituting 
the  negligence,"  If  it  be  true  that  the  courts  of  most  of  the 
states  have  excepted  from  the  general  rule,  which  requires  a 
complaint  to  state  the  facts  constituting  the  cause  of  action  in 
ordinary  and  concise  language,  cases  founded  on  negligence,  or, 
rather,  have  so  far  modified  that  provision  of  the  statute  as  to 
permit  the  plaintiff  to  state  negligence  in  general  terms,  with- 
out stating  the  facts  constituting  the  negligence,  this  court  is 
not  inclined  to  follow  them.  No  doubt,  we  have  much  good  court 
made  law ;  but  when  we  have  a  plain  provision  of  the  statute, — 
too  plain  for  construction, — if  it  requires  modification,  the  leg- 
islative department  of  the  state  may  do  that.  This  court  will 
not  undertake  it.  The  legislature  has  furnished  the  basis  of 
decision  as  to  the  facts  a  complaint  must  contain,  and  courts 
are  bound  by  it.  In  the  case  last  cited  the  court  further  said: 
"The  statement  of  other  facts  auxiliary  to  this  main  fact  (neg- 
ligence) might  have  tended  to  a  clearer  conception  of  the  prin- 

p^"^—  ^   ~  .AjM^^^T^^^^A     ^^-•■~^'*-5^^-o        o-»-J«0.'V_J-        Jq3^A>oU     -^ 


378  THE  COMPLAINT.  [ChAP.  III. 

cipal  act,  but  tlie  most  that  can  be  said  against  the  pleading  is 
that  it  states  a  cause  of  action,  but  states  it  imperfectly,  which 
is  the  equivalent  of  saying  that  it  is  good  except  against  a 
special  demurrer."  So  we  think  in  the  case  at  bar  the  com- 
plaint sufficiently  states  a  cause  of  action,  except  as  against  a 
special  demurrer  on  the  ground  of  uncertainty.  The  demurrer 
should  have  been  sustained,  and  the  plaintiff  permitted  to 
amend  his  complaint  by  setting  forth  the  facts  constituting  the 
negligence.  In  Woodward  v.  Navigation  Co.  (Or.),  22  Pac, 
1076,  which  was  a  case  founded  on  negligence,  the  court  says, 
*'Our  code  (section  66)  requires  the  complaint  to  contain  a 
plain  and  concise  statement  of  the  facts  constituting  the  plain- 
tiff's cause  of  action,  and  one  of  the  great  objects  to  be  attained 
by  this  enactment  was  to  compel  the  plaintiff  to  place  upon  the 
record  the  specific  and  particular  facts  which  he  claims  en- 
titles him  to  recover,"  and  holds  that  the  plaintiff  must  allege 
in  the  complaint  the  acts  or  omissions  of  the  defendant  causing 
the  injury,  and  show  that  they  occurred  through  or  by  the 
negligence  of  the  defendant.  That  decision  recognizes  the  fact 
that  in  some  jurisdictions  it  is  sufficient  to  allege  generally  that 
the  injury  complained  of  was  negligently  done,  but  declares 
that  that  method  of  pleading  has  not  been  approved  in  that 
state.  In  ]\IePherson  v.  Bridge  Co.,  26  Pac,  560,  the  supreme 
court  of  Oregon  holds  that  in  actions  for  negligence  a  general 
allegation  of  negligence  does  not  charge  a  fact.  In  Batter- 
son  V.  Railway  Co.,  13  N.  W.  508  (a  case  from  Michigan),  the 
court  held  that  the  plaintiff,  in  negligence  cases,  is  "bound  to 
set  out  the  combination  of  material  facts  relied  upon  as  his 
cause  of  action,  and  follow  up  his  allegations  by  evidence  point- 
ing out  and  proving  the  same  combination  of  circumstances." 
See,  also.  Car  Co.  v.  Martin  (Ga.),  18  S.  E.  364;  Steffe  v.  Rail- 
road Co.  (Mass.),  30  N.  E.  1137;  Conley  v.  Railroad  Co. 
(N.  C),  14  S.  E.  303;  Price  v.  Water  Co.  (Kan.  Sup.),  50  Pac, 
450.  We  are  aware  that  there  is  very  respectable  authority 
which  holds  that  a  general  allegation  of  negligence  is  sufficient, 
and  that  at  common  law  it  was  not  necessary,  in  a  declaration 
for  negligence,  to  set  out  the  facts  constituting  the  negligence. 
But  our  code  of  civil  procedure  has  greatly  changed  the  com- 
mon law  rules  of  pleading,  and  requires  the  facts  constituting 
the  cause  of  action  to  be  set  forth  in  ordinary  and  concise 
language.  And  in  the  case  at  bar  facts  sufficient  should  have 
been  set  forth  to  inform  the  defendant  what  act  or  omission 


Sec.  1.]  KING   V.    OREGON   SHORT    LINE.  379 

constituted  the  negligence  com])lained  of.  The  judgment  of 
the  court  below  is  reversed,  with  instructions  to  sustain  the 
demurrer,  and  to  give  the  plaintiff  leave  to  amend  his  com- 
plaint.    The  costs  of  this  appeal  are  awarded  to  the  appellant. 

Judgment  reversed. 

P.,  C,  C.  &  ST.  L.  R.  R.  CO.  V.  LIGHTHEISER. 
163  hid.,  247.      [1901. 


GiLLETT,  J.     Appellee  instituted  this  *tf6tion  against  appel- 
lant to   recover  for  an  injury  to  his  person.     His  complaint 
was  in  four  paragraphs,  to  each  of  which  appellant  unsuccess-  'zy^.-^^^r^s^^ 
fully  demurred.     Issues  of  fact  were  joined  and  there  was  a ';iw^..>rt>v>-^ 
verdict  and  judgment  for  appellee.     The  errors  assigned  bring   ^a^wv^  Vs^ 
in  question  the  rulings  on  the  demurrers  above  mentioned,  the  <wuk.^-  ^^^ 
overruling  of  a  motion  made  by  appellant  for  judgment  in  its  -v/>^^  .^w-^ 
favor  on  the  answers  returned  by  the  jury  to  interrogatories,  and  (^. 
the  overruling  of  appellant's  motion  for  a  new  trial. 

According  to  all  the  paragraphs  of  complaint,  appellee,  who 
was  an  employe  of  appellant,  as  a  locomotive  engineer,  received 
his  injury  in  the  city  of  Logansport,  during  the  nighttime  by 
being  knocked  dowTi  and  run  over  by  a  mail  car  belonging  to 
appellant,  which  was  being  run  backward  in  appellant's  yards. 
It  is  averred  in  said  paragraphs  that  appellee  had  been  ordered 
to  make  a  trip  upon  appellant's  road;  "that,  in  obedience  to 
said  order,  plaintiff,  as  was  his  duty  under  his  employment, 
took  his  position  at  a  point  between  the  tracks  on  which  his  loco- 
motive was  standing  and  the  track  in  which  said  mail  car  was 
approaching,    for   the    purpose    of    examining,    accepting,    and 
assuming  control  of  said  locomotive,  when  said  locomotive  began 
to  move;  and  that  said  locomotive  and  the  mail  car  passed  him 
at  the  same  time,  leaving  a  space  of  but  four  feet  between  the 
locomotive  and  car,  where  he  might  stand.    It  is  further  alleged 
that  while  appellee  was  occupying  this  position,  "as  was  his 
duty  to  do  under  his  employment,"  he  was  knocked  down  and 
run  over  by  said  mail  car.     The  first  paragraph  of  complaint 
char-es  that  "it  was  the  duty"  of  appellant  to  provide  said 
car  with  a  person  stationed  on  the  forward  end  thereof,  as  it 
was  being  moved,  supplied  with  a  proper  signal  light,  to  warn 


380  THE  CO.Ml'I>AINT.  [CilAl'.  lil. 

the  appellee  and  other  persons  usinj?  the  grounds  between  and 
adjacent  to  appellant's  tracks,  and  also  to  provide  said  car  with 
an  airbrake  attachment,  so  that  said  car  could  be  stopped  by  a 
brakeman  upon  the  discovery  of  any  one  in  imminent  peril  of 
life  or  limb  from  being  run  over  by  said  car.    It  is  alleged  that 
apj^ellant  negligently  and  carelessly  omitted  to  take  such  pre- 
cautions, and  that  appellee  was  run  upon  and  injured  by  reason 
of  the  negligent  movement  as  aforesaid.     The  second  paragraph 
of  the  complaint  counts  on  the  negligence  of  the  engineer  in 
control  of  the  locomotive  which  was  moving  said  mail  car.     He 
is  charged  with  negligently  moving  said  car  backward  without 
having  a  person  stationed  on  the  end  thereof,  so  as  to  perceive 
the  first  sign  of  danger  and  to  signal  the  engineer,  as  required 
by  a  rule  of  appellant.     Said  engineer  is  also  charged  in  said 
paragraph  with  negligence  in  moving  said  car  in  violation  of 
certain  ordinances  of  the  city  of  Logansport.    It  is  also  alleged 
that  appellee  was  run  over  by  said  car  as  a  result  of  the  negli- 
gence as  pleaded.     In  appellee's  third  paragraph  of  complaint, 
it  is  alleged  that  "it  was  the  duty"  of  appellant's  yard  con- 
ductor, Avho  had  charge  of  said  car  and  the  locomotive  attached, 
to  take  the  particular  precautions  which  we  have  mentioned  in 
connection  with   our   statement   as   to   the   first   paragraph   of 
complaint.    It  is  further  alleged  that  such  yard  conductor  negli- 
gently and  carelessly  omitted  to  take  such  precautious,  and  that 
by  reason  thereof  appellee  was  run  over  and  injured  by  said 
mail  car.    The  fourth  paragraph  of  complaint,  like  the  first  and 
third,  contains  a  direct  charge  as  to  appellant's  duty  to  take 
certain  precautions;   and   it  is  further  alleged  that   appellant 
employed  an  incompetent  and  inexperienced  brakeman  or  flag- 
man on  said  car,  knowing  him  to  be  incompetent  and  inexperi- 
enced, and  that  the  latter  omitted  to  take  the  precautions  which 
it  is  alleged  that  it  was  appellant's  duty  to  take  in  connection 
will  the  movement  of  said  car,  and  that,  as  a  result,  appellee  was 
run  over.     Each  of  said  paragraphs  is  quite  long,  and  it  is  but 
just  to  appellee's  counsel  to  state  that  there  has  been  no  attempt 
upon  our  part  to  exhibit  all  of  the  details  of  said  paragraphs. 
It  has  only  been  our  endeavor  to  make  such  a  statement  concern- 
ing them  as  would  furnish  a  basis  for  this  opinion. 
\      The  first  paragraph  of  complaint  is   insufficient.     It   is   well 
settled  that  a  complaint  for  negligence  must  disclose  by  proper 
averments  the  existence  of  a  duty  upon  the  part  of  the  defend- 


Sec.  1.]        P.,  c,  c.  &  st.  l.  r.  e.  co.  v.  lightheisee.  381 

ant,  or  of  the  person  alleged  to  be  negligent,  where  it  is  a  case  of 
imputed  negligence,  as  under  an  employer's  liability  act,  to  ex- 
ercise care  toward  the  person  injured.    Muncie  Pulp  Co.  v,  Da- 
vis (Ind.  Sup.)  70  N.  E.  875;  American  Rolling  Mill  Co.  v.  Hul- 
inger,  161  Ind.  673  (67  N.  E.  986),  (69  N.  E.  460)  ;  Faris  v. 
Hoberg,  134  Ind.  269   (33  N.  E.  1028,  39  Am.  St.  Rep.  261) ; 
Louisville  &  C.  R.  R.  Co.  v.  Sanford,  117  Ind.  265  (19  N.  E.  770)  ; 
Zimmermann  v.  Bauer,  11  Ind.  App.  607  (39  N.  E.  299).    The^W^--   ^^ 
direct  statement  that  it  was  the  duty  of  the  defendant,  to  do  or  '^."^'^'*^^ 
not  to  do  a  certain  act,  is  a  mere  conclusion  cf  law      The  rule  (^^^*J^  A^ 
Ts  that  facts  must  be  alleged  from  which  the  law  will  imply  the  ^^^^^^^^^^^ 
existence  of  the  underlying  duty.    Indianapolis  etc.  R.  R.  Co.  v.  ,^__j^_^  ^^ 
Foreman  (Ind.  Sup.)  69  N.  E.  669,  and  cases  cited;  Seymour  v.  ^^^..^^^^^  «^ 
Maddox,  16  Q.  B.  326;  Brown  v.  Mallett,  57  Eng.  Com.  Law  ^.^^  a  \ 
598;  City  of  Buffalo  v.  IloUoway,  7  N.  Y.  493,  57  Am.  Dec.  550;   ^  .j.,-,^,.^ 
West  Chicago  Street  R.  R.  Co.  v.  Celt,  50  111.  App.  640.    And  see  Vv:,^  r\<^^ 
Hopper  V.  Covington,  118  U.  S.  148  (6  Sup.  Ct.  1025,  30  L.  Ed.  ^  a»X>:JCo 
190).    In  Brown  v.  Mallett,  supra,  the  declaratirn  charged  tha1..^-)^^_^  j^  .j^ 
"thereupon  it  became  the  duty  of  the  defendant"  to  do  certain  ^j^w.  c-cr^^  ^ 
things.     Of  this,  Maule,  J.,  said:     " But  the  allegation  now  in  V)^,^^.^^^^ - 
question  is  open  to  the  further  objection  that,  however  directly  ^<^l>^  Vv^w 
averred,  it  is  an  averment  of  matter  cf  law  only,  and  not  of  mat- ^„^,^^Jt^  ^ 
ter  of  fact.    If  the  words  had  been  that  the  defendant  became  ^j^ 
bound  by  law  to  do  certain  acts,  it  could  not  be  questioned  that 
that  was  an  allegation  of  matter  of  law;  and  the  words  'it  be- 
came the  duty  of  the  defendant,'  if  they  were  to  be  understood 
as  averring  the  existence  of  some  duty  different  from  that  aris- 
ing out  of  a  legal  obligation,  certainly  would  not  aid  the  declara- 
tion, inasmuch  as  the  breach  of  such  a  duty  does    not    give    a 
cause  of  action.     But  if  they  be  understood,  as  we  think  they 
are,  as  averring  the  existence  of  a  legal  liability,  it  is  well  estab- 
lished that  such  an  averment,  being  an  averment  of  a  matter  of 
law,  will  not  supply  the  want  of  those  allegations  of   matter   of 
fact  from  which  the  court  could  infer  the  law  to  be  as  stated,  so 
that  such  allegation  is  useless  where  the  declaration  is  insufii- 
cient,  and  .superfluous  when  sufficient  without  it."     Seymour  v. 
Maddox,  supra,  was  a  master  and  servant  case,  where  there  was 
an  express  allegation  of  duty.     In  holding   that   the   judgment 
must  be  arrested.  Lord  Campbell  said:    "The  duty,  a  breach  oi 
which  is  laid,  does  not  arise  from  the  particular  facts  stated  in 
the  declaration,  nor  from  the  general  relation  of  master  and 


382  THE  COMPLAINT.  [ChaP.  III. 

servant.  What,  then,  is  the  effect  of  the  positive  aHet^'ation  of 
such  duty?  I  confess  that  I  at  first  thought  that  where  a  rela- 
tion from  which  a  particular  duty  may  arise  is  alleged,  and  the 
particular  duty  is  also  alleged,  it  might  be  shown  in  evidence  that 
in  fact  such  a  duty  did  arise,  and  that  it  was  unnecessary  to  set 
forth  the  facts  themselves  which  raise  the  duty.  But  the  de- 
cisions show  that  the  allegation  of  duty  is  in  all  cases  immaterial, 
and  ought  never  to  be  introduced,  for,  if  the  particular  facts 
raise  the  duty,  the  allegation  is  unnecessary,  and,  if  they  do 
not,  it  will  be  unavailing.  In  this  case  there  is  an  allegation  that 
it  was  the  defendant's  duty  to  light  the  floor  and  fence  the  hole, 
but  no  facts  are  stated  from  Avhieh  the  duty  aa-ises.  The  express 
allegation,  therefore,  will  not  help  the  defect,  and  the  declara- 
tion is  bad." 

Returning  to  the  paragraph  of  complaint  under  considera- 
tion, it  is  first  to  be  observed,  since  the  paragraph  in  (juestion  is 
drawn  on  the  theory  of  a  common  law  liability,  that,  for  aught 
that  is  pleaded,  the  person  who  caused  said  car  to  be  moved, 
without  having  a  brakeman  or  lookout  upon  it  was  himself  a  fel- 
low servant  of  appellee,  for  whose  acts  or  omissions  appellant 
was  not  liable.  Southern  Indiana  R.  R.  Co.  v.  Martin,  160  Ind. 
280  {66  N.  E.  886).  It  devolved  upon  appellee  to  show,  by 
proper  allegations  of  fact,  that  it  was  a  duty  which  belonged  to 
the  master  that  had  been  neglected.  Southern  Indiana  R.  R.  Co. 
V.  Harrell,  161  Ind.  689  (68  N.  E.  262,  63  L.  R.  A.  460).  As 
was  pointed  out  in  the  case  last  cited,  the  duty  of  the  master  with 
respect  to  providing  a  proper  place  to  work  does  not  require  that 
the  master  should  at  all  times  keep  the  place  safe,  as  against 
transient  perils  occasioned  by  the  negligence  of  other  servants 
who  are  engaged  in  executing  the  details  of  the  work.  There  is 
enough  to  suggest  in  said  first  paragraph  that  possibly  appellant 
was  delinquent  in  the  matter  of  omitting  to  furnish  proper  ap- 
pliances, but  there  is  not  sufficient  alleged  in  such  particular. 
The  allegations  of  the  paragraph  do  not  aid  us  in  determining 
whether  a  duty  existed.  There  is  nothing  in  the  pleading  to  ad- 
vise us  that  it  was  dangerous  to  move  a  car  backward  in  the  yard 
at_that  particular  time  without  taking  the  precautions  alleged 
to  have  been  omitted^  Facts  are  not  disclosed  from  which  it  can 
be  said  that  it  was  the  duty  of  appellant  so  far  to  apprehend  the 
happening  of  such  an  occurrence  as  to  create  a  duty  upon  its 
part  to  furnish  special  appliances  to  guard  against  such  conse- 


Sec.  1.]        p.,  c,  c.  &  st.  l.  r.  r.  co.  v.  lightheiser.  383 

quenees,  and,  as  respects  the  air  brake  attachment,  it  is  not  al- 
leged that  such  appliance  is  one  which  it  is  practicable  to  oper- 
ate in  the  manner  suggested. 

In  indicating  that  the  facts  disclosed  do  not  show  the  existence 
of  a  duty,  we  are  not  unmindful  of  what  is  alleged  as  to  where 
it  was  the  duty  of  appellee  to  be  under  his  contract.  There  are 
instances  where  the  word  ' '  duty ' '  may  be  used  in  a  pleading,  al- 
though perhaps  not  with  the  utmost  propriety,  in  characterizing 
the  nature  of  the  plaintiff's  employment,  as  where  the  word  is 
used  as  descriptive  of  an  ultimate  fact  as  to  the  character  of  the 
work  which  he  was  required  to  do^  as  that  one  of  the  duties  which 
plaintiff  was  employed  to  perform  was  to  inspect  his  locomotive. 
In  such  an  instance  the  allegation  is  one  of  ultimate  fact,  and  is 
partially  descriptive  of  what  his  contract  was.  But  here  it  is 
sought  to  be  shown  that  appellee  was  properly  in  a  particular 
place,  and  he  charges  that  it  was  his  duty  to  be  there  under  his 
contract  of  employment ;  thus  attempting  to  characterize  the  con- 
tract without  showing  what  the  contract  was.  If  a  rule  of  the. 
company  required  him  to  be  at  that  particular  point,  the  exist- 
ence  of  the  rule  should  have  been  pleaded,  or,  if  it  was  necessary 
for  him  to  be  there  in  order  to  execute  one  of  the  details  of  his 
work,  that  should  be  alleged,  or,  whatever  the  fact  might  be  which 
justified  his  presence  at  that  point,  it  should  be  made  to  appear 
by  an  appropriate  averment  of  fact.  The  attempted  showing 
in  the^  latter  part  of  said  paragraph  as  to  what  was  the  duty  of 
appellant  being  insufficient,  the  whole  burden  of  manifesting  the 
existence  of  such  duty  is  thrown  upon  the  allegation  that  the  ap- 
pellee took  a  position  as  it  was  his  duty  to  do  under  his  contract. 
The  sufficiency  of  such  allegation  must  be  judged  by  the  purpose 
that  it  must  serve,  if  the  paragraph  is  to  be  held  good,  namely, 
to  manifest  that  there  was  a  duty  owing  to  appellee.  According 
to  the  allegation,  he  received  an  order  to  take  his  locomotive 
upon  a  trip.  Now,  if  this  order,  from  the  nature  of  the  contract 
of  employment,  implied  that  he  must  go  to,  and  remain  at,  the 
place  where  he  was  injured,  then  there  was  a  particular  duty 
owing  appellee,  as  contradistinguished  from  a  general  duty  which 
might  be  shown  to  exist  toward  all  employees  working  in  the 
yards.  To  manifest  this  particular  duty,  appellee  attempts  to 
construe  his  contract^  and  this  effort  we  must  characterize,  hav- 
ing  in  mind  the  purpose  that  it  was  designed  to  serve,  as  a  mere 
conclusion.     The  pleader  might  as  well  have  alleged  that  the 


384  THE  COMPLAINT,  [ClIAP.  111. 

piving  of  the  order  to  take  his  loeomotive  out  upon  the  road  im- 
plied, by  virtue  of  liis  general  contract  of  employment,  that  he 
was  to  assume  a  cortain  position  until  the  time  came  to  go  upon 
such  locomotive.  In  Jelfersonville  etc.  R.  R.  Co.  v.  Dunlap,  29 
Ind.  426,  this  court,  in  speaking  of  some  of  the  cases  above  cited, 
said:  "The  gravamen  in  each  of  these  cases  was  that  by  virtue 
of  a  contract  it  became  the  duty  of  the  defendant  to  do  certain 
things  which  he  neglected  to  do,  whereby  the  plaintiff  was  dam- 
aged. It  did  not  appear  from  the  facts  stated  that  the  duty 
was  imposed,  and  it  was  merely  held  that  the  averment  that  the 
duty  existed  was  alleging  a  conclusion  of  law,  and  not  of  fact. 
This  was  in  accordance  with  a  rule  of  pleading  long  and  well 
settled." 

Speaking  generally  of  the  first  paragraph  of  the  complaint,  it 
may  be  said  that,  in  a  pleading,  facts  must  be  directly  and  posi- 
tively  alleged,  and  it  is  not  permissible  to  indulge  in  inferences 
in  support  of  the  pleading,  although  it  might,  be  entirely  legit- 
imate to  draw  such  inferences,  had  the  question  arisen  as  to  the 
effect  of  evidence.     American  Rolling  Mill  Company  v.  Hull- 
^^     inger,  161  Ind.  673  (67  N.  E.  986). 
^  '^       ^^  f    The  objections  pointed  out  to  the  first  paragraph  of  complaint 
^\!^2^  'also  condemn  the  third  and  fourth  paragraphs.     *     *     * 

Judgment  reversed,  with  a  direction  to  sustain  appellant's  de- 
murrers to  the  first,  third  and  fourth  paragraphs  of  complaint. 


\^^- 


HORN  V,  LUDINGTON. 
28  Wis.  81.     [J 871.] 

Lyon,  J.  This  is  an  appeal  from  an  order  of  the  circuit  court 
denying  a  motion  that  the  plaintiff  be  required  to  make  his  com- 
plaint more  definite  and  certain  in  the  several  particulars  speci- 
fied in  the  motion. 

The  complaint  alleges  that  for  a  long  time  before,  and  until 
the  summer  of  1870,  the  defendant  Ludington  held  in  his  name 
the  legal  title  to  certain  property  therein  described,   for  the 


fw-i  b5§Ou   owners  and  tenants  in  common  thereof  in  equal  shares;  that 
^^_jX^  Ludington,  while  he  held  the  title  thereto,  commenced  negotia- 


benefit  of,  and  in  trust  for,  the  plaintiff   and   the    defendants 
Cross,  Ludington,  Scott  and  Hobart,  who,  it  is  alleged,  are  the 


Sec.  1.]  HORN  V.  ludington.  385 

tions  with  the  defendant  the  Milwaukee  and  Northern  Railway 
Company,  to  sell  the  same  to  that  corporation  for  twenty  thou- 
sand dollars;  that  pending  such  negotiations  he  executed  a  con- 
veyance thereof  to  the  defendant  Donaher,  pretending  to  have 
actually  sold  the  same  to  him  for  about  five  thousand  dollars; 
that  the  conveyance  to  Donaher  was  not  made  in  good  faith,  but 
was  without  consideration,  and  was  made  by  Ludington  to  de- 
fraud the  other  owners  of  the  property,  particularly  the  plain- 
tiff, out  of  the  same,  and  to  prevent  them  from  receiving  the 
proceeds  of  the  sale  thereof  then  being  negotiated  with  the  said 
company,  and  that  Donaher  knew  of  the  interest  of  the  plaintiff 
in  such  property ;  that  Ludington  continued  his  negotiations  with 
the  raihvay  company,  and  has  consummated  an  agreement  with 
it,  by  which  the  company  is  to  pay  him  twenty  thousand  dollars 
for  the  property,  but  which  sum  has  not  yet  been  paid,  and  he 
is  to  deliver  to  the  company  a  conveyance  of  the  property  to  be 
executed  by  Donaher ;  that  Ludington  denies  that  the  plaintiff  is 
a  part  owner  of  the  said  property,  pretends  that  he  has  no  inter- 
est therein,  and  declares  that  he  will  not  divide  the  proceeds 
thereof  with  the  plaintiff.  The  complaint  further  alleges,  in 
general  terms,  that  the  plaintiff  rendered  services,  personal  and 
professional,  in  the  protection  and  management  of  such  property, 
of  the  value  of  upwards  of  five  thousand  dollars,  and  paid,  laid 
out  and  expended  money  in  that  behalf  and  for  the  benefit  of 
the  owners  to  the  amount  of  about  fifteen  hundred  dollars,  all 
which  he  did  after  he  acquired  such  interest  in  the  property,  and 
at  the  request  of  the  owners,  and  in  pursuance  of  an  agreement 
with  them  at  the  time  he  acquired  such  interest,  and  as  the  con- 
sideration therefor. 

The  object  and  purpose  of  the  action  is  to  enforce  the  execu- 
tion of  the  alleged  trust  by  compelling  a  conveyance  of  the  prop- 
erty to  the  owners,  and,  if  that  cannot  be  done,  to  secure  an 
equitable  division  among  them  of  the  proceeds  of  the  sale  thereof. 

The  particulars  specified  in  the  motion  relate,  first,  to  the  al- 
legations of  the  existence  of  such  trust,  and,  secondly,  to  the 
statement  of  the  services  rendered  and  the  money  paid  by  the 
plaintiff,  as  the  consideration  for  his  interest  in  said  property. 

The  Revised  Statutes,  chap.  125,  section  2,  subdivision  2,  pro- 
vide that  the  complaint  shall  contain  "a  plain  and  concise  state- 
ment of  the  facts  constituting  the  cause  of  action,  without  un- 
necessary repetition."  Here  the  cause  of  action  is  the  alleged 
25 


386  TUE  COMPLAINT.  [CllAP.  111. 

trust,  the  same  as  in  a  money  demand  on  contract  the  debt  is 
the  cause  of  action.  If  there  be  no  debt,  there  can  be  no  recov- 
ery; and  in  this  action,  if  there  is  no  trust,  the  plaintiff  cannot 
recover.  The  cause  of  action,  to-wit,  the  trust,  is  stated  in  the 
complaint,  but  the  facts  constituting  such  cause  of  action,  to- 
wit,  the  facts  which  make  Ludington  a  trustee  of  the  plaintiff 
15^^  and  others  in  respect  to  the  property  in  controversy,  are  not 

therein  stated.     We  think,  therefore,  that  the  plaintiff  should 
have  been  required  to  make  his  complaint  more  definite  and  cer- 
tain in  this  particular,  by  stating  therein  facts  which  will  show 
that  Ludington  holds  the  title  to  the  property  as  such  trustee. 
.   -         As  to  the  statement  "f  the  services  rendered  and  money  ex- 
X  c^^-K^^Af>f»i:  pgmjp(j  l3y  ^jjg  plaintiff  in  the  protection  and  management  of  the 
V-'^''-'^-^^*"'^"  property,  if,  in  the  progress  of  the  action,  it  should  become  ma- 
*-*-*^  *-^         terial  to  ascertain  the  extent  and  value  of  such  services^  and  the 
^"^^  amount  of  money  so  paid,  and  the  purposes  to  which  it  was  ap- 
plied, the  court  may  require  the  plaintiff  to  furnish  a  bill  of 
,-JLV-'0-^  .     items  of  the  same^  and  may,  and  doubtless  would,  order  a  refer- 
ence for  the  purpose  of  having  the  account  thereof  stated.    The 
appellant  will  thus  be  furnished  with  the  specific  information 
which  he  desires,  if  it  becomes  material  that  he  should  have  such 
information.     We^  think  the  complaint  sufficiently  definite  and 
certain  in  the  latter  particular. 

By  the  Court. — The  order  appealed  from  is  reversed,  and  the 
cause  remanded  with  directions  to  the  circuit  court  to  grant  the 
motion  requiring  the  complaint  to  be  made  more  definite  and 
certain  to  the  extent  indicated  in  this  opinion. 


tv^T:>lA-A.» 


V-  ^^• 


yPEHRSON  V.  HEWITT. 

79  Cal.  598.      [1889.] 

Thornton,  J.  The  plaintiffs  bring  this  action  to  have  certain 
judgments,  and  the  executions  issued  thereon,  and  the  levies 
made  under  them,  vacated  and  set  aside ;  that  an  adjudication  in 
insolvency  may  be  vacated,  and  the  proceedings  dismissed;  and 
for  an  injunction  restraining  certain  defendants,  etc.,  from  sell- 
ing certain  property  described  in  the  complaint.  The  defend- 
ants contend  that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action,  and  that,  therefore,  the  judgment 


< 


Sec.  1.]  PEHRSON  v.  hewitt.  387 

and  order  denying  a  new  trial  should  be  reversed.  The  defend- 
ants demurred  to  the  complaint  on  the  above-stated  ground.  The 
complaint  sets  forth  that  the  defendant  Hewitt  was  indebted  to 


9  jLo.rw~^-*-   >*JlV 


the  several  plaintiffs  in  several  sums  for  divers  matters;  that  ^^^ 
they  commenced  actions  against  Hewitt  in  a  justice's  court  to  ^^^  \J^a 
recover  these  amounts,  and  sued  out  writs  of  attachments,  which  \.^jj,^^^,jj%  tZX^ 
were  levied  by  the  sheriff  of  the  county  upon  the  property  of  —  \yex*^«-v  «\, 
defendant  Hewitt,  set  forth  in  the  complaint;  that  before  the  -tUR,  .s^dujo.,  A 
conuneneement  of  these  actions  Hewitt  filed  in  the  same  justice's  p^jA  o-rJJui,  c 
court  certain  pretended  confessions  of  judgment  in  favor  of  sev-  Vi-e/^^v.'*  \p.*^ 
eral  defendants  for  certain  amounts  alleged  to  be  due  to  each  of  ^'^^■^^•^^  ,  c»iifi>^ 

rr  ■fr      ^ 

the  defendants,  which  confessions  of  judgment  were  accepted  by  ^^^^-^^^  *,' 
the  several  defendants  in  whose  favor  they  were  made.  Plain-  v^**-*''-'^^**^*- 
tiffs  further  allege  that  said  pretended  confessions  of  judgment  .^  ^^  (XyaiJkA 
were  made  by  Hewitt  and  accepted  by  defendants  with  the  in-  \;i^i2^^jo^j3i^  Sio^ 
tent  and  design  of  hindering,  delaying,  and  defrauding  the  plain-  ^aw3u>»  0/>«ouu 
tiffs  and  other  creditors  of  Hewitt  by  a  combination  among  them, 
by  which  they  were  to  levy  executions  upon  all  the  property  of 
Hewitt,  and  have  the  same  sold  for  the  amount  of  said  confes- 
sions to  said  defendants,  or  some  of  them,  and  that  after  said 
sale  had  been  made  that  Hewitt  was  to  be  placed  again  in  full 
possession  and  control  of  the  property  for  his  own  use  and  bene- 
fit, and  fraudulently  protected  by  such  proceedings  against  the 
claims  of  plaintiffs,  and  thus  rendering  any  judgments  which 
plaintiffs  might  recover  against  Hewitt  ineffectual.  It  is  further 
averred  that  executions  afterwards  issued  on  the  judgments 
above  mentioned,  and  came  into  the  hands  of  the  defendant 
Eckels,  who  was  a  constable,  and  that  the  constable  made  a  pre- 
tended levy  under  the  said  executions  on  the  property  above 
mentioned ;  that  this  levy  was  made  and  abandoned  prior  to  the 
levy  of  the  attachments  of  plaintiffs  above  set  forth,  and  that 
since  the  abandonment  the  constable  has  never  had  possession  or 
control  of  any  of  the  property  above  referred  to;  that  the  con- 
stable pretends  that  the  levies  made  by  him  are  in  full  force,  and 
that  he  is  proceeding  to  sell  said  property  under  these  levies.  The 
defendant  Hewitt  is  insolvent  and  was  insolvent  when  he  made 
the  confessions  of  judgment  above  stated,  and  that  in  further- 
ance of  the  above  stated  agreement  by  defendants,  and  to  carry 
out  and  complete  the  fraudulent  scheme  of  defendants,  did,  on 
the  16th  of  i\larch,  1886,  file  his  petition  in  insolvency;  that  this 
petition  was  not  filed  in  good  faith,  but  for  the  wrongful  and 


388  THE  COMPLAINT.  [CHiVP.  111. 

fraudulent  purpose  of  defeating  the  attachment  liens  of  plain- 
tiffs, to  the  end  that  the  pretended  levies  of  the  executions  might 
hold  the  property,  and  a  sale  of  the  same  might  be  made  in  such 
manner  as  to  fraudulently  cover  it,  and  protect  it  from  the 
claims  of  plaintiffs. 
..^ajj,^^^,^  We  see  no  element  of  fraud  by  defendants  in  the  matters 

o,v>a:  m^,  averred  in  the  complaint.  It  is  not  averred  that  the  debts  for 
<A/Jcl»-v dkiiLe*.  which  the  judgments  were  confessed  by  Hewitt,  in  favor  of  the 
■Jl  .  ^ o-jc^  ^  several  defendants,  were  not  justly  due  by  Hewitt  to  them. 
--xj(.  X--^*^  Stylini;-  tlx'  confessions  of  judgments  * ' pretended^ "  as  was  done 
^  fXJ^^iA  by  the  plaiutills  in  the  complaint,  did  not  show  that  thev  were 
^'^'^^^?***^  ^.  Thejtacts  should  have  been  set  forth  from  which  it  would 
^^^'^"^^TT'^r*  appear  that  thoy  were  piitcnHed  and  simulated,  and  not  reaf 
'  and  genuine,     'i'liere  was  no  law  in  existence  when  the  confes-~ 

^J-'-'^A^        sions  were  made  which  prevented  Hewitt  from  confessing  a  judg- 
''^'^•'■^*-  *^~ment  in  favor  of  a  bona  fide  creditor,  and  there  is  nothing  alleged 
in  the  complaint  which  tends  to  show  that  the  defendants  were 
-^  ^^j,         not  honest  creditors  to  whom  Hewitt  w^as  justly  indebted.    The 
^^^^^^^^.^^v  word_J^  pretended "  is  ^mere  ^ithet^  which,  in  the  absence  of 

^^^^^^  X^      facts  showing  the  pretended  character  of  the  confessions  or  of 
\_^^.,,^^     the  judgments,  imports  nothing  impugning  either  the  confessions 
ix.-s, ,  or  the  judgments.     It  sufficiently  appears  that  confessions  of 

judgment  were  filed  in  the  justice's  court,  that  judgments  were 
entered  on  them,  and  executions  issued  on  the  judgments.  It  is 
not  sufficient  to  allege  that  confessions  or  judgments  are  fraudu- 
lent, but  the  facts  showing  that  they  are  such  must  be  averred,  so 
that  the  court  can  perceive  that  such  instruments  are  fraud- 
ulent. The  facts  showing  the  fraud  must  .be  made  to  appear  by 
averment.  See  Kinder  v.  Macy,  7  Cal.  206 ;  Harris  v.  Taylor,  15 
Cal.  348 ;  Meeker  v.  Harris,  19  Cal.  289,  290. 

The  debts  for  which  the  judgments  were  confessed  being  just- 
ly due  by  Hewitt,  we  see  no  fraud  in  the  defendants  agreeing  to 
buy  the  property  at  the  sale  had  on  their  executions,  and,  if  they 
did  buy  it,  giving  it  to  Hewitt,  if  they  elected  to  do  so.  To  hold 
that  they  could  not  do  so  would  be  to  hold  that  a  man  could  not 
do  what  he  chooses  with  his  own  property.  The  defendants,  if 
they  bought  at  the  sale  under  execution,  would  pay  their  own 
money  for  the  property  bought,  and  when  so  bought  and  paid 
for  it  would  belong  to  them,  and  they  could  do  with  it  what  they 
chose  to  do.  They  might  give  it  away  to  Hewitt  or  any  one  else, 
or  might  destroy  it  if  they  saw  fit.    We  cannot  see  how  a  court 


Sec.  1.]  PEiiRsox  v.  hewitt. 


389 


of  equity  can  set  aside  au  adjudication  in  insolvency  or  dismiss 
such  a  proceeding.  It  is  averred  that  Hewitt  was  insolvent,  and  ^  ^^^**^ 
if  so  he  had  a  right  to  apply  for  a  discharge  imder  the  statutes 
in  relation  to  insolvency.  There  can  be  no  fraud  iu  the  pursu- 
ance of  a  remedy  allowed  by  law.  Hewitt,  in  applying  for  his 
discharge  in  insolvency,  was  taking  the  steps  provided  by  law  for 
having  his  property  equitably  and  fairly  subjected  to  the  satis- 
faction  of  his  creditors.  Of  this,  no  creditor  has  a  right  to  com-  ^f*^ 
plain.  If  he  has  no  right  to  apply  to  be  discharged  from  the 
claims  of  his  creditors,  they  will  have  an  opportunity  of  showing 
that,  and  preventing  his  discharge,  in  the  insolvency  proceed- 
ing. If  the  confessions. of  judgment  made  to  defendants  are  pro- 
hibited by  the  insolvent  laws,  the  assignee  in  insolvency  can  have 
them  adjudged  void,  and  on  a  proper  proceeding  they  will  be  so 
adjudged,  but  no  such  proceeding  is  before  us  in  this  case.  As 
the  agreement  made  by  defendants  described  above  was  free 
from  fraud,  we  cannot  see  that  the  application  in  insolvency  to 
carry  out  such  arrangement  could  or  would  be  fraudulent.  We 
are  of  opinion  that  the_coraplaint  does  not  state  facts  suflScient  to 
constitute  a  cause  of  action,  and  therefore  the  judgment  and  or- 
der are  reversed,  and  the  cause  remanded,  with  directions  to  the 
court  below  to  sustain  the  demurrer  to  the  complaint,  and  for 
other  proceedings  according  to  law.    So  ordered.* 

v^  ^-^ 

NICHOLS  v.  NICHOLS. 

134  Mo.  1S7.     [1S96.] 

Macparlane,  J.     A  demurrer  to  plaintiff's  amended  petition    «u>ju<rv^  X^ 

was  sustained  and  from  the  judgment  thereon  in  favor  of  de-  v^'-^A^    V^^ 
fendants  she  appealed.     The  petition  was  as  follows:  aSu>/..<*.i>-^ 

' '  For  amended  petition  herein,  plaintiff  complains  and  alleges  ^"*^  ^^^^^T^^tJ^ 
that  on  the  eleventh  day  of  February,  1892,  she  was  lawfully  'HsV^^-*-'^^^ 
married  to  and  became  the  wife  of  George  Nichols.     That  from 

the  date  of  said  marriage  till  the day  of  March,  1893,  she 

and  her  said  husband,  George  Nichols,  continued  to  live  together 
as  husband  and  wife.    That  during  all  that  time  plaintiff  faith- 


*See  same  rule  applied  to  an  answer.    Nichols  v.  Stevens,  123  Mo. 
96.  Sukeforth  v.  Lord,  23  Pac.  208. 


390  THE  COMPLAINT.  [CUAP.  III. 

fully  demeaned  herself  and  discharged  all  her  duties  as  the  wife 
of  said  George  Nichols;  and  she  and  her  husband  lived  happily 
together  and  enjoyed  the  aid,  support,  companionship,  society, 
and  affection  of  each  other. 

That  the  defendants,  well  knowing  that  plaintiff  and  George 
Nichols  were  husband  and  wife,  and  that  they  were  living  hap- 
pily together,  enjoying  the  aid,  support,  companionship,  so- 
ciety, and  affection  of  each  other,  wrongfully,  wickedly,  and  ma- 
liciously acted  and  co-operated  together,  with  the  wrongful, 
wicked,  and  malicious  intent  to  cause  plaintiff" 's  said  husband  to 
leave  and  abandon  her,  and  to  cease  living  with  plaintiff'  as  her 
husband,  and  to  deprive  plaintiff"  of  t\m  aid,  support,  compan- 
^^^      ionship,  society,  protection,  and  affection  of  her  said  husband; 

y^J^^^^»^^K     and  on  the day  of  March,  1893,  the  defendants,  pursuant 

,^,,,^^^,^,J\xt}  to  their  said  wicked,  wrongful,  and  malicious  intent,  did  wrong- 
o^  fcXi.oJwJ».  fully,  wickedly,  and  maliciously  entice,  influence,  and  induce 
y>^.*^  ti-  plaintiff's  said  husband  to  leave  and  abandon  her;  and  her  said 
*-*-  JLo^.  husband,  being  influenced  by  and  acting  under  the  said  wrong- 
ful, wicked,  and  malicious  enticement,  influence,  and  inducement 
of  defendants,  did  then  leave  and  abandon  her,  and  being  influ- 
enced by  and  acting  under  said  wrongful,  wicked,  and  malicious 
enticement,  influence,  and  inducement,  has  ever  since  remained 
away  from  and  separate  and  apart  from  her.  And  ever  since 
said  abandonment,  the  defendants  have  wrongfully,  wickedly, 
and  maliciously  detained  and  harbored  plaintiff's  said  husband, 
and  have  kept  him  separate  and  apart  from  her;  and  have  by 
their  said  wrongful,  wicked,  and  malicious  acts  and  conduct  de- 
prived plaintiff,  and  still  do  deprive  her,  of  the  aid,  support, 
companionship,  society,  protection,  and  affection  of  her  said 
husband. 

Wherefore,  plaintiff  says  she  is  damaged  in  the  sum  of  ten 
thousand  dollars  ($10,000),  for  which  sum  and  for  costs  she 
prays  judgment." 

Each  defendant  filed  a  separate  demurrer,  assigning  as 
grounds  thereof  the  following: 

**1.  Because  the  petition  on  its  face  fails  to  state  any  cause  of 
action  against  this  defendant. 

"2.  Because  the  petition  fails  to  state  or  set  out  in  detail  the 
facts  which  it  is  claimed  caused  George  Nichols,  husband  of 
plaintiff,  to  separate  from  her,  and  live  separate  and  apart  from 
her,  plaintiff.  .  .        •  ^w-^-  . 


Sec.  1.]  NICHOLS  v.  nichols.  391 

"3.  Because  there  is  a  defect  of  parties  plaintiff  in  this,  that 
if  any  cause  of  action  is  stated,  George  Nichols  is  a  necessary- 
party  plaintiff." 

The  demurrers  were  sustained,  and  plaintiff  declining  to  plead 
further,  final  judgment  was  rendered  for  defendants. 

I.  The  right  of  a  wife  to  maintain  an    action    for    damages  9wv3c  'f^ 
against  a  third  person  for  alienating  the  affections  of  her  hus-  o^Jt;^*^  su^'. 
band  and  thereby  depriving  her  of  his  comfort  and  society  has 

been  affirmed  by  this  court  since  this  judgment  was  rendered. 
Clow  V.  Chapman,  125  IMo.  103.     *     *     * 

II.  Was  the  demurrer  properly  sustained  upon  the  second 
ground  stated?  Does  the  petition  state  facts  sufficient  to  con- 
stitute a  cause  of  action? 

The  substantial  charge  in  the  petition  is  that  defendants 
wrongfully  enticed,  influenced,  and  induced  plaintiff's  husband 
to  abandon  her  and  to  live  separate  and  apart  from  her,  thereby 
depriving,  and  intending  to  deprive,  her  of  his  affection,  comfort, 
society,  and  support.  Defendants  insist  that  this  is  but  a  state- 
ment of  a  conclusion  of  law,  that  the  acts  done  and  words  spoken 
should  have  been  stated. 

The  code  requires  the  facts  which  constitute  the  cause  of  ac- 
tion to  be  stated.  A  statement  of  mere  legal  conclusions  is  not 
sufficient,  and,  on  the  other  hand,  a  detailed  statement  of  the 
evidence  is  not  required.  Difficulty  is  sometimes  experienced  in 
drawing  the  line  between  a  statement  of  fact  and  a  conclusion  of 
law,  and  between  a  statement  of  the  ultimate  fact  and  a  state- 
ment of  the  evidence  by  which  such  fact  is  to  be  established. 

It  may  be  stated  generally  that  the  ultimate,  constitutive,  and_ 
issuable^facts^  must  be  stated.  Issuable  facts  are  defined  to  be 
*' those  upon  which  a  material  issue  may  be  taken."  Evidential 
or  probative  facts,  which  should  not  be  stated,  are  those  upon 
which  a  material  issue  can  not  be  taken  and  from  which  the 
issuable  facts  may  be  inferred.  Bliss  on  Code  Pleading  (3  Ed.) 
sec.  206. 

Pomeroy  says:  *'The  material  facts  which  constitute  the 
ground  of  relief  *  *  *  should  be  averred  as  they  actually 
existed  or  took  place,  and  not  the  legal  effect  or  aspect  of  those 
facts,  and  not  the  mere  evidence  or  probative  matter  by  which 
their  existence  is  established."  Pom.,  Rem.  Rights  (2  Ed.),  sec. 
517. 

Again  the  same  author  says:     ''The  allegations  must  be  of 


392  THE  COMPLAINT.  [UlI.U^  111, 

those  principal,  determinate,  constitutive  facts,  upon  the  exist- 
ence of  which,  as  stated,  the  entire  cause  of  action  rests,  so  that, 
when  denied,  the  issue  thus  formed  with  each  would  involve  the 
whole  remedial  right."    Section  526. 
"Oasa.  v>iL^-       'f  jjg  ultimate  fact  which  is  constitutive  of  the  cause  of  action 


in  this  case  is  that  of  wrongfully  inducing  the  husband  of  plain- 
tiff to  abondon  her.     The  methods  adoptca  to  accomplisn  that 


'^ir*^^^^  purpose  are  mere  matters  ot  evidence  trom  winch  the  ultimate 
k^..,...,-!.  tir  fact  is  proved  or  may  be  inferred.  Various  methods  may 
a-Sl/^iA-.  >Ja^  have  been  adopted  to  accomplish  the  purpose  and  a  denial  of 
■"•^^  \  *^     them,  if  stated,  would  not  form  a  single  issue  involving  the 


\^^^^^  whole  remedial  right.     They  would  be  probative,  and  not  con- 

stitutive, facts.     In  the  opinion  of  the  jury  an  inference  that 
defendants    wrongfully    induced    plaintiff's    husband    to    leave 
,    ,  her  might  not  be  drawn  from  one  or  more  acts  proved,  but 

might  readily  be  drawn  from  them  all  taken  in  the  aggregate. 
No  issue  could,  therefore,  be  made  upon  each  act  and  statement 
of  defendants  that  would  conclude  the  right  of  plamt iff  jto_re; 
cover. 

Wrongfully  inducing  plaintiff's  husband  to  abandon  her 
is  a  conclusion  of  fact  depending  upon  the  proof  of  acts,  dec- 
larations, and  conduct  of  defendants.  It  is  not  a  conclusion 
q  oi  law,  but  a  fact  from  w^hich  a  legal  conclusion  is  to  be  drawn. 
That  legal  conclusion  was  questioned  in  the  first  ground  of  the 
demurrer.    Judgment  reversed  and  cause  remanded.    All  concur. 


-t^ 


-PL«-v„     (oSi-eJ-vw- 


KERR  v.   STEMAN. 

72  la.   211.      [1S37.] 

juffw  Ww  Action  to  recover  damages  alleged  to  have  been  sustained  by 
L>»Wi^UL^  reason  of  the  fraudulent  representations  of  the  defendant,  by 
'^-'^*'*<«.  which  the  plaintiff,  Eliza  A.  Kerr,  was  induced  to  sell  and  con- 

****^^''*-^*^-  vey  certain  real  estate.  The  defendant  moyed.,tLat  the  plaintiff 
be  made  to  make  ji_  more  specific  stat^xient^  of  the  facts  consti- 
tuting the  fraud.  The  court  sustained  the  motion.  The  plain- 
tiff elected  to  stand  upon  her  petition.  Judgment  was  rendered 
against  her  for  costs,  and  she  appeals. 

Adams,   C.  J.     The   petition  shows  clearly  enough  that  the 
plaintiff  was  at  one  time  the  o\vner  of  certain  real  estate  con- 

2u>.*    |Vs/J5U>>«.  ->Jui^      ^-^--a^      <K/sXra-*  iV^'^^~A^^-J5 —  ^ 

rev —  <r>kAjk..o     .    -..     ^  Ji%.v. ..  t-.K&  .^ 


Sec.  1.]  KEER   V.    STEMAN.  393 

sisting  of  a  town  lot  and  an  undivided  third  of  a  tract  of  40  acres;  ;Jci::i5:»s>--v^ 
that  she  employed  the  defendant  to  make  an  exchange  of  the  same  ^^'^  a-t:ki-«>^ 
for  other  property ;  that  he  reported  that  he  had  negotiated  an  ex- 
change, stating  the  terms,  and  she  executed  the  required  con- 


a  false  report,  with  the  intent  to  cheat  and  defraud  her;  but 


veyances.     The  petition  further  states  that  the  defendant  made  >r>rjL/vjtXA^  t>» 

^_—  (xJAx«^5jU. 

wherein  the  same  was  false  docs  not  appear.     She  should  have   o-  faAJOXA./^^ 
set  ouTTn  what  the  falsity  consisted,  in  order  that  the  defendant 
might  know  wliat  he  should  come  prepared  to  disprove.     The 
doctrine  is  elementary  what  whoever  sets  up  a  fraud  must  do 
more  than  allege  fraud  in  general  and  abstract  terms.    He  musT 


set  ouFthe  specilic  tacts  in  which  the  Iraud  congists.  The  peti- 
tTon  in  this  case  seems  to  us  to  be  clearly  msufliclent,  and  we 
think  that  the  court  did  not  err  in  sustaining  the  defendant's 
motion  for  a  more  specilie  statement.  Affirmed.     i^\'^\) 


ROGERS  V.  CITY  OF  MILWAUKEE. 
13  Wis.,  610.     [1861.] 

By  the  Court,  Paine,  J.     This  action  was  brought  to  restrain  ^ibOi^  fe  ys>^ 
the  execution  of  certain  tax  deeds  upon  certificates  of  sales  of  the  wAjctn^  W- 
plaintiff's  land  for  taxes.     The  defendant  demurred  to  the  com-  V-  -^S^^j-^*-^ 
plaint  as  not  stating  facts  sufficient  to  constitute  a  cause  of  action, 
and  the  demurrer  was  sustained,  from  which  order  this  appeal 
was  taken. 

It  is  undoubtedly  true  that  a  large  part  of  the  complaint  is  tvva,.Ajurt*»  « 
not  good  pleading.  The  plaintiff  relied  on  an  absence  of  prelimi-t>o>j»:5r  ,^u.v^ 
nary  proceedings,  essential  to  the  validity  of  the  tax  sales.  ^^"^^^"■"^t^J^^I^ 
instead  of  averring  either  of  his  own  knowledge  or  upon  infor-  ^^.^^^^.^^^^  ,^^^ 
mation  and  belief  that  such  proceedings  were  not  had,  he  onlvyy^o  ^<^  ov. 
averred  that  he  had  searched  in  the  proper  offices  for  the  evidence  wJvi^-^i^ 
that  they  were  had,  and  failed  to  find  it.     The  only  issue  that  <^--^,  -^-^ 


could  be  made  upon  such  allegations  would  be  whether  he  had 
searched  and  found  the  evidence  or  not,  which  would  be  entirely- 
immaterial. 

But  while  such  was  the  character  of  a  large  part  of  the  com- 
plaint, we  think  there  was  one  defect  averred  with  sufficient 
directness  to  save  the  complaint  from  being  demurrable.  It  avers 
that  the  street  commissioners  were  bound  by  law  to  give  reason- 


V-^ 


*>-'Ni 


394  THE  COMPLAINT.  [CllAP.  III. 

able  and  timely  notice,  in  order  that  the  owners  and  occupants 

of  lots  on  said  street  might  do  said  work,  and  the  plaintiff,  on 

information  and  belief,  denies  that  any  such  notice  was  given, 

etc.     The  giving  of  such  notice  was  undoubtedly  essential  to  the 

validity  of  the  contracts  on  which  the  certificates  were  issued, 

oX>-.4AotiJL  and  therefore  to  the  validity  of  the  sales.    And  the  want  of  such 

^'^^^^-•-'^  ^notice  is   positively   alleged   on   information   and  belief.     This 

^^  A-t^^  seems  to  us  sufficient  to  make  out  a  cause  of  action,  and  the  order 

sustaining  the  demurrer  must  be  reversed,  with  costs,  and  the 

cause  remanded  for  further  proceedings. 


DAVIS  V.  IIOUGIITELIN,  ET  AL. 

33  Neb.,  582.      \1891.] 

NoRVAL,  J.  This  is  a  proceeding  in  error  to  reverse  the  judg- 
V-  ment  of  the  district  court  of  Jefferson  county,  sustaining  a  gen- 
fc..^o»*>^*«ieral  demurrer  to  the  petition  of  the  plaintiff,  and  dismissing  the 
iW-^^!UA«X.j^g^joji  rpj^e  petition  alleges:  "(1)  That  she  is  administratrix 
'*-^'*^  y^^  of  the  estate  of  Daniel  C.  Davis,  deceased,  duly  appointed  ac- 
'•  »'-*'^'-*"'*^ cording  to  law.  (2)  That  the  defendants  are  partners  in  tradt, 
'^'^'^  doing  business  as  such  at  Fairbury,  in  said  county,  under  the 

^*^'^"  firm  name  and  style  of  Iloughtelin  &  McDowell.  (3)  That  on  or 
'  Vj^*-^«^  ^^^^^^  ^^^  28th  day  of  March,  A.  D.,  1888,  said  defendants  were 
5  ,?;^ffr--^'.o.^  ^^^  possession  of  certain  premises  at  Fairbury,  in  said  county, 
whereon  they  were  engaged  in  the  business  of  feeding  cattle  and 
hogs,  and  had,  upon  said  premises,  a  quantity  of  feed  and  pro- 
vender for  said  cattle  and  hogs;  and  plaintiff  says  defendants 
also  kept  and  employed,  in  and  about  their  said  business,  a  cer- 
tain servant  and  agent,  one  Allen  Ireland,  by  name,  for  the  pur- 
pose of  guarding  said  feed,  and  whose  business  it  was,  in  the 
due  course  of  his  employment  by  said  defendants,  to  seize  and 
detain  persons  who  might  be  found  disturbing  such  feed  so  pro- 
vided by  defendants.  (4)  That  on  said  day  the  said  Daniel  C. 
Davis,  then  in  full  health  and  life,  had  occasion  to  go  and  be 
upon  said  premises  of  said  defendants,  and  she  says  that  while 
so  there  the  said  defendants,  by  their  servant  and  agent,  Ireland, 
who  was  then  and  there  present,  and  acting  for  said  defendants 
in  the  due  course  of  his  employment  as  aforesaid,  and  pursuant 


Sec.  1.]  DAVIS  v.  houghtelin.  395 

to  his  instructions  and  orders,  attempted  to  seize  and  detain, 
without  any  lawful  process  or  warrant,  the  said  Daniel  C.  Davis, 
deceased ;  and  plaintiff  avers  that  said  defendants  and  their  said 
servants  so  negligently,  carelessly,  and  unlawfully  managed  their 
said  business  and  attempt  that  the  said  Daniel  C.  Davis  was  then 
and  there  shot  through  his  heart  with  a  bullet  from  a  pistol  then 
and  there  negligently,  carelessly,  and  unlawfully  had  and  held 
in  the  hands  of  defendants'  said  servant,  said  Ireland,  and  said 
Daniel  C.  Davis  was  then  and  thereby  instantly  killed.  (5)  Plain- 
tiff avers  that  the  death  of  said  Daniel  C.  Davis,  as  aforesaid,  was 
caused  by  the  wrongful  and  unlawful  act,  neglect,  and  default  of 
said  defendants,  and  without  any  just  or  sufficient  cause,  provo- 
cation, or  fault  on  the  part  of  said  decedent ;  that  they,  said  de- 
fendants, knowingly  and  intentionally  employed  said  Ireland  for 
the   purpose   of  assaulting  and   attempting  to   detain,  without 
process  or  warrant,  persons  who  might  go  upon  their  said  prem- 
ises as  aforesaid ;  and  that  they  well  knew  that  their  said  servant, 
Ireland,  was  so  armed  with  said  pistol  in  their  said  employment, 
and  was  likely  to  so  negligently,  carelessly,  and  unlawfully  use 
the  same  in  and  about  their  said  business  and  employment,  and 
that  great  personal  injury  and  damage,  or  loss  of  life,  was  liable 
to  ensue  thereby  and  therefrom,  yet  they,  said  defendants,  not- 
withstanding, did  not  and  would  not  prevent  and  forbid  their 
said  servant,  but  did  carelessly,  negligently,  and  unlawfully  per- 
mit him  in  the  premises,  contrary  to  their  duty  in  that  case.     (6) 
Plaintiff  further  states  that  said  Daniel  C.  Davis,  deceased,  left 
surviving  him  his  widow,  this  plaintiff,  and  the  following  named 
children,  his  next  of  kin  and  heirs,  to-wit :    Albert  L.  Davis,  aged 
17  years ;  George  Davis,  aged  14  years ;  May  Davis,  aged  12  years ; 
Elfa  Davis,  aged  10  years ;  Stella  Davis,  aged  8  years ;  and  Emory 
Davis,  aged  2  years,— all  residents  of  the  same  county;  and  she 
says  that  they  have  sustained  damages  by  reason  of  the  wrongful 
act,  neglect,  and  default  of  defendants,  as  aforesaid,  in  the  sum 
of  five  thousand  ($5,000)  dollars." 

This  is  an  action  to  recover  damages  for  the  killing  of  plain- 
tiff's intestate  by  one  Allen  Ireland,  who,  it  is  alleged,  was  at  the 
time  in  the  defendants'  employ.  The  general  principle  that  a 
master  is  liable  for  injuries  to  third  persons  resulting  from  the 
negligence  of  the  servant  while  in  the  line  of  his  employment  is 
familiar.  It  is  equally  well  settled  that  a  master  is  not  responsi- 
ble  for  the  willful  and  tortious  act  of  his  servant  committed  out- 


^'J(j  TIIE  COMPLAINT.  fCll.U'.  111. 

^''^^^^  side  of  the  scope  of  his  employment.  Miller  v.  Railroad  Co.,  8 
Neb.,  219;  TuUer  v.  Voght,  13  111.,  277;  Oxford  v.  Peter,  28  111., 
434;  Moir  v.  Hopkins,  16  111.,  313;  Do  Camp  v.  Railroad  Co.,  12 
Iowa,  348;  Cooke  v.  Railroad  Co.,  30  Iowa,  203;  Carter  v.  Rail- 
^A>y..jiA^  way  Co.,  98  Ind.,  552;  Gravel  Road  Co.  v.  Cause,  76  Ind.,  142; 
Meehan  v.  Morewood,  (Sup.)  5  N.  Y.  Supp.,  710;  Lafitte  v.  Rail- 
road Co.,  (La.,)  8  South.  Rep.,  701;  Fraser  v.  Freeman,  43  N.  Y., 
56G ;  Cooley,  Torts,  533  et  seq. 

The  sufficiency  of  the  petition,  therefore,  depends  upon  whether 
it  charges  that  the  act  of  killing^  Davis  was  done  in  the  prosecu- 
tion of  the  defendants'  business,  and  within  the  range  of  the 
servant's   employment.     The   third   paragraph  of  the   petition 
charges  that  Allen  Ireland  was  employed  by  the  defendants  to 
guard  certain  feed  belonging  to  them  upon  their  premises,  and  to 
seize  and  detain  persons  who  might  be  found  disturbing  such 
^^  ^*rf^  ^®^^-     "^^^is  is  the  only  allegation  of  fact  in  the  entire  pleading 
^^*^f*2v-  relating  to  the  nature  and  scope  of  Ireland 's  employment.    As  to 
'Jl^^A^^^^^^  the  act  of  killing,  it  is  averred,  in  effect,  that  the  deceased  had 
j^^^^^^^^^_^* occasion  to  be  upon  defendants'  premises,  and  while  so  there  said 
^^^^^^X^^^^  Ireland,  in  attempting  to  seize  and  detain  said  Davis,  negligently, 
carelessly,  and  unlawfully  shot  and  killed  him.    There  is  no  alle- 


^u^v^X^.-  nation  that  Davis  was  molesting  the  feed,  or  attempting  so  to  do, 
or  that  it  was  any  part  of  Ireland's  duty  to  seize  and  arrest  per 


A^-w». 


,,^„.,^xr^.    SQ^-s  who  happened  to  be  upon  the  premises,  except  those  who 
^  were  there  for  a  specified  purpose.     It  is  obvious  that  the  aver- 

\  ment  in  the  fourth  paragraph  of  the  petition,  that  Ireland  ' '  was_ 

T^^\X^    acting  for  said  defendants  in  the  due  course  of  his  employment  \ 
js   W»5r    as  aforesaid,  and,  pursuant  to  his  instructions  and  orders,  at-   \ 
X Ji>.i-.^,o4ifU  tempted  to  seize  and  detain,"  is  a  mere  conclusion,  and  not  a    \ 
statement      of      any      fact,      showing      that      the      attemnteT   * 
seizure    and    detention    of    Da^ds   was    within   the    range    anJ 
authority  of  Ireland's  duties.     Likewise  the  allegation  in  the 
A,  c>s>^<iL».-irLth  paragraph,  that  Davis'  death  "was  caused  by  the  wrongful 
A)  ^^*^    and  unlawful  act,  neglect,  and  default  of  said  defendants,"  is  the 
^Vjjjg.  V     statement  of  a  conclusion  of  law,  which  the  demurrer  does  not 
\suj,,,j,jj^jj^^  admit.     It  is  only  facts  that  are  well  pleaded  which  are  con- 
-vAJi^<UL-   fessed  by  general  demurrer.     So  far  as  the  allegations  in  th?) 
Vj«^^^  ,      petition  are  concerned,  or  the  legitimate  inferences  to  be  drawn  C 
^'T^'^'therefrcm,  Ireland's  employment  was  exclusively  in  guarding  and  I 
:  Jc  i.*y>-=,  '  protecting  the  feed,  and  the  wrong  charged  was  something  which  i 
<*^^^;^^*^    his  agency  did  not  contemplate,  and  which  he  could  not  lawfully  I 


Sec.  1.]  DAVIS  v.  houghtelin.  \i01 

do  in  the  name  of  the  defendants.  His  business  no  more  contem- 
plated the  seizure  of  a  person  who  was  upon  the  defendants' 
premises  for  a  lawful  purpose  than  it  did  the  arrest  and  detention 
of  a  person  lawfully  passing  along  the  public  highway  near  the 
property,  and  in  neither  case  would  the  defendants  be  liable  for 
the  act.  The  test  of  a  master's  liability  is  not  whether  a  given 
act  was  done  during  the  existence  of  the  servant's  employment, 
but  whether  it  was  committed  in  the  prosecution  of  the  master's 
business.     *     *     * 

Judgment  affirmed. 

V-  ^■ 

JACCARD  V.  ANDERSON. 

3,2  Mo.,  188.     [1862.] 

Dryden,  Judge,  delivered  the  opinion  of  the  court. 
The  plaintiffs,  as  the  last  endorsers  of  a  promissory  note,  sue 
the  defendant,  as  first  endorser.     Their  petition  is  as  follows, 

Eugene  Jaccard,  Augustus  Mermor,  and  D.  Constant  Jac-,,,,^^,^_y„^^ 
card,  plaintiffs,  v.  William  C.  Anderson,  Jr.,  defendant.  In  St.  c»--v,^fc,^s«>3r  ^ 
Louis  Circuit  court,  St.  Louis  county.  -wC^/<j»<^«^  ^ 

"Plaintiffs,  by  Alex.  J.  P.  Garesche,  their  attorney,  state  that  ^^^'^^^  - 
they  are  partners,  associated  together  as  E.  Jaccard  &  Co.;  that 
Washington  King,  by  his  negotiable  note  herewith  filed,  dated 
April  16,  1856,  promised  to  pay  to  defendant,  or  his  order,  one 
thousand  dollars,  one  year  after  date ;  that  defendant  assigned  by 
endorsement  and  delivered  said  note  to  E.  H.  Bussell,  and  said 
E.  H.  Bussell  assigned  by  endorsement  and  delivered  same  to  the 
plaintiffs.  Plaintiffs  further  state  that  said  note  was  not  pro- 
tested at  the  defendant's  instance  and  request,  he  waiving  pro- 
test ;  that  no  part  of  said  note  has  been  paid.  They  further  ask 
judgment  for  said  sum  of  one  thousand  dollars,  interest,  and 
costs. 

Alex  J.  P.  Garesche, 
Attorney  for  plaintiffs." 

The  defendant  answered,  and  a  trial  of  the  case  was  had,  and 
a  verdict  and  judgment  was  rendered  for  the  plaintiffs.  Several 
exceptions  were  taken  in  the  progress  of  the  trial,  which  it  will 
be  unnecessary  for  us  to  notice.  In  due  time  the  defendant  moved 
in  arrest  of  the  judgment  because  of  the  insuflBciency  of  the 


398  THE  COMPLAINT.  [(JlIAl'.  III. 

petition,  and  the  motion  being  overruled,  he  excepted  and  ap- 
pealed to  this  court. 

The  petition  is  defective  in  not  stating  facts  sufficient  to  eon- 
-«»-^  <^**->  Ktitute  a  cause  of  action.  In  order  to  render  an  assignor  liable 
^^*T^^''^^^**^to  the  assignee  it  must  appear  by  the  petition,  either  that  the  note 
!CJj^^^ assigned  is  negotiable,  or  if  not  negotiable,  that  the  maker  was 


0-\A^v<     \ 


vv>»icw>>-«>o  insolvent  or  non-resident  of  the  state ;  or  that  the  assignee,  in  the 
^>-o5*^  (■•v  diligent  prosecution  of  a  suit  against  the  maker,  had  been  unsuc- 
v^^^  o^  cessf ul  in  making  the  debt.  It  does  not  appear  by  any  averment 
i^^^j^  #v  (X  or  fact  in  this  case  that  the  note  assigned  was  a  negotiable  instru- 
vvQ^.  -'^^^^^j^rnentJ  nor  are  such  facts  shown  as  are  necessary  to  impose  a 
liability  upon  the  defendant  as  assignor  of  a  note  not  negotiable. 
^jiSitkA^  True,  it  is  stated,  or  rather  recited  in  the  petition,  that  the  note 
■"-^i^.  is  negotiable ;  but  this  is  the  statement  of  the  conclusion  or  opin- 
^^S^^^J>>I!^i]^^^i^^^  of  the  pleader,  not  the  averment  of  a  fact  upon  which  issue 
^/«A■•^>t./>».(A^•' could  be  taken  or  the  judgment  of  the  law  be  pronounced.  The 
••  operative  words  in  a  negotiable  note  under  the  law  of  this  state 

are  ' '  for  value  received,  negotiable  and  payable  without  defalca- 
tion," and  their  employment  in  the  instrument  declared  upon 
must  appear  in  the  petition  in  order  to  enable  the  court  to  see 
and  pronounce  the  legal  effect  of  such  instrument. 

Again,  supposing  the  note  declared  upon  negotiable,  the  aver- 
O,  -Oi^ju^  ment  of  an  essential  element  of  the  defendant's  liability  is  omitted 
(AJtj^-fc^^f  in  the  petition,  viz. :  the  demand  or  excuse  for  failure  to  demand 
'^'""^'^ '^  payment  of  the  maker.  It  is  averred  that  "at  defendant's  in- 
■**-"-'^  "^  stance  and  request  the  note  was  not  protested,  he  waiving  pro- 
[]^,J^^  test,"  and  it  is  urged  in  the  argument  that  his  waiver  is  in  law 
VutAjyvv^^^.a  waiver  of  demand.  However  this  may  be  (and  we  express  no 
opinion  upon  the  point),  it  does  not  reach  the  point  of  difficulty. 
The  question  under  consideration  is  a  question  of  pleading:  the 
:^  ilAM)Jl/^,  effect  of  the  waiver  of  protest  is  a  question  of  evidence.  There 
^^aA>^*-«-s^  jtiust  be  an  averment  of  a  demand,  or  of  the  facts  which  will 
^^^  '^^^V  excuse  and  be  equivalent  to  it,  in  order  to  show  the  defendant's 
;  liability.  What  effect  the  waiver  of  protest  may  have  in  proving 
the  excuse  alleged  is  another  matter.  Its  sufficiency  for  the  pur- 
pose renders  the  averment  in  the  petition  none  the  less  necessary. 
The  court  erred  in  overruling  the  motion  in  arrest,  and  for  this 
cause  its  judgment  is  reversed  and  the  cause  remanded,  with 
directions  to  permit  the  plaintiffs  to  amend  their  petition,  if  they 
desire  to  do  so.    The  other  judges  concur. 


Sec.  1.]  BANK  V.  FIDELITY  &  CASUALTY  CO.  399 


BANK  OF  TIMMONSVILLE  v.  FIDELITY  &  CASUALTY 

COMPANY. 

120  Fed.  (C.  C),  315.     [1903.] 

SiMONTON,  Circuit  Judge.  This  case  comes  up  on  a  rule  to 
show  cause  why  the  complaint  should  not  be  made  definite  and 
certain  in  the  particulars  mentioned.  The  Code  of  Procedure  of 
South  Carolina  does  not  prescribe  the  mode  in  which  the  object 
now  sought  can  be  attained.  Code,  Sec.  181.  The  usual  course 
is  to  do  this  by  motion.  Nicholas  v.  Briggs,  18  S.  C,  473.  But 
the  course  now  taken  is  just  as  effective.  The  action  is  brought 
by  the  plaintiff,  the  Bank  of  Timmonsville,  against  the  Fidelity 
&  Casualty  Company  of  New  York,  upon  a  bond  or  policy  of  in- 
surance issued  by  the  defendant  to  the  plaintiff,  whereby  the 
defendant  agreed,  on  certain  conditions,  to  make  good  and  reim- 
burse any  loss  plaintiff  might  sustain  by  reason  of  the  fraud  or 
dishonesty  of  one  Leehner,  its  cashier,  committed  during  the  term 
of  the  policy. 

The  particulars  in  which  it  is  sought  to  make  this  complaint 
more  definite  and  certain  are : 

(1)  By  setting  forth  in  full  the  policy  of  insurance  or  bond 
mentioned  in  paragraphs  3,  5,  6,  8,  and  10,  of  the  complaint.  Un^  'V^  Xw^ 
der  the  rules  of  Code  pleading,  it  is  not  necessary  to  set  out  in  ^  ^,^2,3:^!!^ 
haec  verba  written  instruments  sued  on.  Thev  may  be  set  out  pA>^A>^^^.— »>^  '■ 
according  to  their  legal  effect.  6  Cyc.  PL  &  Prac,  263,  and  cases  V-e^t^  ^>^ 
cited  4  Cyc.  PI.  &  Prac,  916,  3  Cyc.  PL  &  Prac,  645.  This,  also,  "^  -^  ^ 
is  the  rule  of  pleading  in  the  Federal  Court.  In  Sheehy  v.  Mande-  .^^**!^^^^J^^ 
ville,  7  Cranch,  217,  3  L.  Ed.,  320,  INIarshall,  C.  J.,  says :  ^ 

"It  is  not  necessary  to  recite  the  contract  in  haec  verba,  but, 
if  it  be  recited,  the  recital  must  be  strictly  accurate.  If  the  instru- 
ment be  declared  on  according  to  its  legal  effect,  that  effect  must 
be  truly  stated.  If  there  be  a  failure  in  one  respect  or  the  other, 
an  exception  for  the  variance  may  be  taken,  and  the  plaintiff  can- 
not give  the  instrument  in  evidence."    So  1  Chitty,  PL,  430. 

"It  is  a  principle  of  pleading  that  a  party  relying  on  a  deed, 
etc.  either  as  a  foundation  of  a  cause  of  action,  or  as  a  ground  of 


400  THE  COMPLAINT.  [CUAP.  111. 

(k'fense  or  answer  to  the  pleading  of  his  opponent,  shall  make 
profert  of  the  instrument ;  that  is,  produce  it  nominally  in  court. 
But  in  alleging  the  deed  the  plaintiff  need  not,«in  his  pleading, 
show  more  of  it  than  answers  his  own  purpose,  and  even  that  part 
which  he  states  may  be  set  forth  according  to  its  legal  purport  or 
in  substance. ' ' 

If,  in  such  a  case,  the  opposite  party  wants  the  deed  to  be 
actually  produced,  he  must  pray  oyer.    Chitty,  PI.  p.  429. 

This  complaint  sets  out  the  contract  thus : 

"That  on  the  18th  day  of  March,  1891,  the  defendant,  then 
engaged,  among  other  things,  in  the  business  of  fidelity  and  casu- 
alty insurance,  in  consideration  of  a  premium  of  thirty-seven  and 
50-100  dollars  paid  to  it  by  the  plaintiff,  then  and  now  engaged 
in  the  banking  business,  made  the  plaintiff  its  policy  of  insurance, 
whereby  it  agreed  that  during  a  term  beginning  on  the  17th  day 
of  March,  1891,  and  ending  on  the  17th  day  of  March,  1892,  and 
during  any  subsequent  renewal  thereof,  it  would,  at  the  expira- 
tion of  the  three  months  next,  after  satisfactory  proof  to  the  said 
company  of  any  loss,  make  good  and  reimburse  to  the  employer, 
to  the  extent  of  the  sum  of  five  thousand  dollars,  such  loss,  if 
any,  as  the  employer  should  sustain  by  reason  of  the  fraud  or 
dishonesty  of  the  employed,  F.  C.  Lechner,  in  connection  with 
his  duties  as  cashier  of  said  bank,  or  the  duties  to  which  the 
employer  might  thereafter  assign  or  appoint  him,  provided  such 
fraud  or  dishonesty  should  be  committed  during  the  continuance 
of  said  term,  or  any  renewal  thereof,  and  discovered  during  said 
continuance,  or  within  six  months  thereafter,  and  within  six 
months  after  the  death,  dismissal  or  retirement  of  the  employed. ' ' 

This  is  sufficient.* 

*"The  petition  itself  is  not  beyond  criticism  under  the  rules  of  good 
pleading   (although  it  follows  what  seems  to  have  become  a  not  un- 
usual practice)  and  if  it  had  been  demurred  to  on  the  statutory  ground 
that  it  did  not  state  facts  constituting  a  cause  of  action,  the  demurrer 
should  have  been   sustained.     The  statute   requires  the   facts   consti- 
tuting the  cause  of  action  to  be  stated.    By  this  is  meant  the  ultimate 
facts  as  distinguished  from  the  evidentiary  or  argumentative  facts. 
The  statute  in  this  respect  lays  down  for  the  code  pleader  in  clearer 
terms  the  same  rule  that  the  common  law  on  this  subject  prescribes, 
>j  l^  y.*r\jis^^  rthat  is,  that  a  plea  must  not  be  argumentative.    To  set  out  in  the  pe- 
A  <t^  ijcvS::?^;^  Jtition  haec  verba  the  contract  on  which  the  case  is   founded  is  to^ 
L  e^'^/w-t)bocj  plead  the  evidence,  not  the  facts,     A  pleader  should  determine  in  his 
;lsv^  cv  vown  mind  the  legal  effect  of  the  written  contract  or  other  document 

jLrjij).  Ca-^.0.*  that  underlies  his  case,  and  plead  it  by  its  legal  effect  as  he  understands 


Sec.  1.]  BANK  V.   FIDELITY   &   CASUALTY   CO.  401 

Nor  is  it  essential  to  good  pleading  that  a  copy  of  the  mstru-  ^^'^'^^  ^-a>A  ck.  ur^ 
ment  sued  on  be  attached  as  an  exhibit  to  the  complaint.  Rule  ''^  ^>*^-»>3^>--  v — 
11  of  the  court  savs :  >JvA/v/v*.r-«„,j-  V* 

It  shall  not  be  necessary  for  a  party  to  set  forth  in  a  pleading,  c>^'^-^^3u«s/«-<J^, 
the  items  of  an  account  therein  alleged,  but  he  shall  deliver  to 
the  adverse  party  within  ten  days  after  demand  therefor,  in 
writing,  a  copy  of  the  account  and  every  bond,  deed  or  other 
writing  sued  on,  which,  if  the  pleading  be  verified,  must  be  veri- 
fied by  his  OAvn  cath  or  that  of  his  agent  or  attorney,  to  the  effect 
that  he  believes  it  to  be  true^  or  be  precluded  from  giving  evi- 
dence thereof."     *     *     *     Rule  discharged.  ^\^ 


\t> 


(h)     The  Facts  to  he  Stated* 
/<  HILL  V.  BARRETT. 
14  B.  Monroe,  83.     [1853.] 

Judge  Marshall  delivered  the  opinion  of  the  court. 

This  is  an  action  by  petition  under  the  code,  in  which  the  plain- 
tiff seeks  to  recover  the  value  of  certain  brick  alleged  to  have 
been  made  by  him  on  the  premises  of  the  defendants.  From  the 
written  contract  referred  to  and  filed  as  a  part  of  the  petition, 
and  which  is  thus  made  a  part  of  the  record,  it  appears  that  Hill 
undertook  to  make,  burn,  and  lay  for  the  defendants,  two  hun- 


it,  and  as  he  purposes  to  maintain  it.     If  the  instrument  is  merel 

copied  into  the  petition  it  leaves  uncertain  the  issue  intended  to  be 

_tendered,  depending  on  the  construction  that  may  be  put  upon  it  at 

the  trial.     Our  code  pleading  furnishes  no  authority  for  such  uncer- 

Uinty.    But  where,  as  in  this  case,  no  demurrer  is  filed  and  no  objection' y^^,^,!H  V&X    •\ 

is  made  to  the  petition  until  the  trial  is  on,  it  comes  too  late,  if,  by  k         .    ^^'    ^_ 

construing   the   petition    then   as   stating   what   the   evidence   pleaded  ^^*^J;      cjs^*-5X>^a>. 

tends  to  prove,  it  constitutes  a  cause  of  action.     This  petition  is  sus-  "^^     "*  "Y*^^^ ''^ 

ceptible  of  such  construction."— Valliant  J.,  in  Reilly  v.   Cullen,   159   ^  >^^>j»-<3-A    r 

Mo.  322.  '  "Otr  ^kIX  tV*o~-itr 

*The  substantive  law  of  contracts,  or  of  torts,  or  of  whatever  topic 
Is  involved,  determines  what  facts  are  essential  to  constitute  a  given 
cause  of  action;  and  these,  of  course,  are  to  be  stated,  because  that 
is  the  function  of  the  complaint,  both  at  common  law  and  under  the 
code.  The  law  of  pleading  does  not  undertake  to  determine  what  facts 
are  necessary  to  the  cause  of  action,  any  more  than  the  law  of  evi- 
2G  . 


402  THE  COMPLAINT.  [CHAP.  111. 

dred  thousand  merchantable  bricks,  at  such  place  as  said  defend- 
ants may  designate  at  the  Grayson  Springs,  the  plaintiff  fiirnisli- 
ing  all  the  materials,  boarding,  etc.,  for  which  the  defendants 
agreed  to  pay  him  seven  dollars  and  fifty  cents  per  thousand,  not 
counting  the  openings  in  the  buildings,  to  be  paid  in  one,  two  and 
three  years,  except  one  hundred  dollars,  to  be  taken  out  in  board- 
ing at  the  springs.  But  it  is  provided  that  the  defendant  have 
the  privilege  of  not  putting  up  said  buildings  the  next  spring  if 
they  choose,  in  which  event  they  were  to  pay  the  plaintiff  four 
dollars  and  fifty  cents  per  thousand  (kiln  count),  in  the  manner 
and  times  above  stated ;  and  Hill  bound  him.self  to  complete  said 
building,  or  laying  of  said  brick,  on  or  before  the  first  day  of 
the  next  June,  provided  said  defendants  notify  him  by  the  first 
day  of  the  next  March,  of  their  intention  to  have  said  brick  laid 
the  next  spring.  But  the  defendants  undertook  to  build  the 
foundation  on  which  the  said  bricks  were  to  be  laid,  in  time  for 
,  laying  the  brick  the  next  spring,  provided  they  elect  to  build. 

.j»_  o-WHKi^  The  plaintiff",  without  setting  out  any  part  of  this  agreement  in 
.  o^  WWw-^La.  the  petition,  but  stating  that  one  was  entered  into  by  the  parties 
o^fc  o.  j>i  -  ^  In  August,  1849,  avers,  that  after  its  date,  he  made  and  burnt  on 
.ft^L'-int-  the  premises  of  the  defendants,  in  the  year  1849,  one  hundred  and 
seventy  thousand  merchantable  bricks;  that  they  were  not  laid 
and  put  into  a  house,  because  the  defendants  did  not  notify  him 
that  they  intended  to  have  the  building  put  up,  and  did  not  have 
the  foundation  laid  in  time  for  him  to  build  the  said  house  by  the 
cJl,.^,,.*.^^^^^^  first  day  of  June,  1850,  or  any  other  time,  but  they  elected  that 
ANy^.v>-aAf31*  they  would  not  build  said  house,  whereby  he  was  prevented  from 
tvJtJv.--^  ►jjSi;- making  and  laying  the  two  hundred  thousand  bricks  contracted 
^o.  \3>J.„^r^        for;  and  he  claims  payment  for  the  one  hundred  and  seventy 

^"^'^^^"*~^*''**"**'^  dence  undertakes  to  determine  what  facts  must  be  proved  in  order 

to  sustain  it. 

Y^ —  /y^<kV»>vvA         When  a  pleading  is  adjudged  insufficient  for  failure  to  state  a  cause 

\A>»-:>  »mXo-n—  of  action,  the  question  ordinarily  decided   is  one  of  substantive  law 

aX!a^;-A  jUiv:-^  rather  than  of  pleading.     And  yet  this  subject  cannot  be  wholly  rele- 

.^y^,^  A^cJiAAAw  gated  to  the  domain  of  substantive  law.     When  a  general  demurrer  is 

►  *»**_  o^^         interposed  to  a  complaint,  very  often  two  questions  are  presented:     Is 

"^  ^  ^^"'ti  ^  given  "fact"  essential  under  the  rules  of  substantive  law?    And  if  so 

"^^"^  'V>-^^wvk:  jg  j^  siifficienily  alleged?     Here  the  rules  of  pleading  must  be  taken 

•,  ^    «eKa*^-^        jjj|.q  account.     How  far  will  "judicial  notice,"  or  "presumptions,"  or 

'  ■  implication   and   intendment  supply  the  place  of  express  averment? 

svT'v^'v^c'^  These,  in  part,  at  least,  are  problems  in  the  law  of  pleading,  and  must 

A.,w-c   ^*  be  treated  as  such. — Ed. 


Sec.  1.]  HILL  V.  B.VRRETT.  403 

thousand  bricks  at  the  rate  of  four  dollars  and  fifty  cents,  kiln 

count.    A  demurrer  to  this  petition  was  sustained,  and  judgment 

having  been  rendered  against  the  plaintiff,  he  brings  the  ease  to  n  ^  » 

this  court  for  revision.  \v>->«-^— . 

Although  the  code  of  practice  has  abolished  not  only  the  pre-  Tr*[ns{\J^ 
existing  forms  of  action,  but  also  the  pre-existing  forms  of  plead-  c-*--3;^ 

ing,  and  has  declared,  that  henceforth,  the  forms  of  pleading,  and     k       ^*^Z^ 
the  rules  by  which  their  sufficiency  is  to  be  determined,  are  thase  ^^^j^^    Wx.-<»>^ 
prescribed  in  the  code  itself;  it  adopts  what  has  always  been  a   »AjJb^oX5-^. "< 
cardinal  rule  with  respect  to  the  allegation  of  the  plaintiff,  now    a«o-»,  J^^-^  ■'dKj 
called  the  petition,  that  it  must  contain  a  statement  of  the  facts    Vil*v_- 
constituting  the  plaintiff's  cause  of  action,  with  scarcely  any  other  "  tj^3&v.^,>dr  w* 
specific  requisition,  but  that  it  be  made  in  ordinary  and  concise  --^,-ou.^  a    ,|V-»J 
language,  without  repetition.    Title  7,  chapter  1,  section  144,  p.  ■=)  jos^^js.  .y^^^^A^ 
30,  31.    But  while  the  code  contains  a  very  few  additional  rules 
with  respect  to  the  mode  or  manner  of  alleging  the  facts  relied 
on  as  constituting  a  cause  of  action,  it  does  not,  and  could  not, 
particularize  the  facts  necessary  to  be  stated,  nor  give  any  affirm- 
ative rule  more  special  or  more  instructive  than  that  which  re- 
quires that  the  petition  shall  contain  the  facts  constituting  the 
plainift's  cause  of  action.    The  code  makes  no  change  in  the  law 
which  determines  what  facts  constitute  a  cause  of  action,  except 
that  by  reducing  all  the  forms  of  action  to  the  single  one  by  peti- 
tion, it  changes  the  question  whether  the  plaintiff" 's  statement  of 
his  cause  shows  facts  constituting  a  cause  of  action  in  trespass, 
or  assumpsit,  or  other  particular  form,  into  the  more  general 
question,  whether  it  shows  facts  which  constitute  a  cause  of  action 
at  all,  that  is,  whether  the  facts  stated  are  sufficient  to  show  a 
right  in  the  plaintiff,  an  injury  to  that  right  by  the  defendant,  and 
consequent  damage.     What  facts  do  in  this  sense,  constitute  a 
cause  of  action,  is  determined  by  the  general  rules  or  principles 
of  law  respecting  rights  and  wrongs,  and  by  a  long  course  of 
adjudication  and  practice,  applying  those  rules  to  particular 
actions,  under  the  long  established  rule  of  pleading,  that  the 
declaration  must  state  the  facts  which  constitute  the  plaintiff's 
cause  of  action.    In  adopting  this  fundamental  rule  of  pleading, 
the  code  must  be  considered  as  adopting  also  the  prevailing  and 
authoratative  exposition  of  it  as  understood  at  the  time,  except 
so  far  as  the  code  itself,  either  expressly,  or  by  necessary  implica- 
tion, requires  facts  to  be  stated  which  need  not  before  have  been 


404  THE  COMPLAINT.  [ChAP.  III. 

stated,  or  dispenses  with  the  statement  of  facts  formerly  deemed 
necessary. 

The  express  dispensations  apply  rather  to  the  form  of  state- 
ment than  to  the  facts  to  be  stated.  They  are  to  be  found  prin- 
cipally in  chapter  7,  of  the  title  heretofore  referred  to,  in  sec- 
tions 175,  and  176,  page  36:  The  implied  dispensations  grow 
mainly  out  of  the  reduction  of  all  actions  to  one  form.  The 
requisition  of  additional  facts  may  be  implied  from  the  abolition 
of  that  rule  which  had  formerly  made  it  sufficient,  and  indeed, 
proper,  to  state  facts  according  to  their  legal  effect,  instead  of 
stating  them  as  they  actually  occurred,  which  the  code  seems  to 
require  by  the  rule  that  they  shall  be  stated  in  ordinary  language. 
The  code  does  not  authorize  a  recovery  upon  a  statement  of  facts 
which  did  not  constitute  a  cause  of  action  in  some  form,  before 
the  code  was  adopted.  And,  therefore,  the  former  precedents, 
and  rules,  and  adjudications,  may  now  be  restored  to  as  authori- 
tative, except  so  far  as  they  relate  to  the  distinctions  between  the 
different  forms  of  actions,  or  to  merely  formal  or  technical  allega- 
tions, and  except  so  far  as  particular  allegations  formerly  deemed 
substantial  are  dispensed  with,  or  so  far  as  particular  allegations 
may  now  be  necessary  where  allegations,  according  to  the  legal 
effect  of  the  facts,  may  formerly^ have  been  sufficient. 

Under  this  view  of  the  present  law  of  pleading,  we  are  of  opin- 
ion, that  the  petition  in  this  case  is  defective  in  not  stating  either 
in  terms  or  in  substance  the  contract  for  a  breach  of  which  the 
action  is  brought.  It  is  not  sufficient  to  state  that  on  a  named 
day  the  plaintiff  and  the  defendants  entered  into  a  contract 
signed  by  them,  which  is  herewith  filed,  made  part  hereof,  marked 
A — that  the  plaintiff,  in  pursuance  of  the  contract,  did  and  per- 
formed certain  acts,  and  that  the  defendants  either  did  or  failed 
to  do  certain  acts  on  their  part  in  violation  of  the  agreement.  The 
rule  of  the  code  before  referred  to,  requires  that  the  petition  shall 
state  the  facts  constituting  the  cause  of  action ;  and,  although  in 
another  section,  it  also  requires  that  where  the  action  is  founded 
on  a  \mting,  the  writing  shall  be  filed  as  a  part  of  the  petition, 
which,  as  we  think,  implies  that  it  shall  also  be  referred  to  in  the 
petition,  there  is,  in  our  opinion,  no  dispensation,  either  express 
or  implied,  with  the  necessity  of  stating  in  the  petition  so  much 
of  the  contract  as  shows  that  the  plaintiff,  by  reason  of  the  alleged 
acts  or  omissions  on  his  part,  and  of  those  on  the  part  of  the  de- 
fendants, is  entitled  to  an  action  and  to  relief.  The  petition  must 


SfiC.  1.]  HILL  V.  BARRETT.  405 

contain  in  its  own  body,  and  not  merely  by  reference  to  another 
paper,  a  statement  of  the  facts  constituting  the  cause  of  action. 

But  if  the  petition  in  this  case  had  set  out  the  entire  contract, 
it  would  still  be  defective,  either  in  not  stating  that  the  one  hun- 
dred and  seventy  thousand  bricks,  for  which  payment  is  de- 
manded, were  made  and  burnt  at  the  Grayson  Springs,  at  the 
place  designated  by  the  defendants,  if  they  did  designate  any,  or 
in  not  stating  that  the  defendants  had  accepted  the  bricks  actu- 
ally made.  We  are  inclined  to  the  opinion  that  the  election  of 
the  defendants  not  to  build  in  the  spring,  1850,  was  a  dispensa- 
tion with  further  performance  by  the  plaintiff,  which  entitled 
him  to  be  paid,  according  to  the  price  stipulated  in  that  event, 
for  the  bricks  previously  made,  in  pursuance  of  the  contract. 
And  even  if  this  be  not  so,  the  plaintiff  was  entitled  to  be  paid 
for  his  work  and  materials  made  and  furnished  for  the  use  of 
the  defendants,  and  under  their  employment,  as  much  as  they 
were  reasonably  worth,  provided  they  were  either  accepted  by  the 
defendants,  or  were  furnished  at  the  place  stipulated.  But  as  the 
plaintiff  has  not  averred,  and  could  not  have  averred,  that  he 
had  done  all  which  was  by  the  contract  to  be  done  on  his  part,  he 
should  have  shown  by  positive  statements  of  facts,  that  what  he 
did  do,  was  beneficial  to  the  defendants  in  the  manner  contem- 
plated by  the  contract,  or  that  it  was  accepted  by  them.  It  is 
not  sufficient  to  say,  that  in  pursuance  of  the  agreement,  he  made 
and  burnt  one  hundred  and  seventy  thousand  bricks  on  the  prem- 
ises of  the  defendants. 

Wherefore,  the  judgment  is  affirmed. 


WILKINS  V.  STIDGER. 
2:2  Cal,  232.     [1863.] 

Crocker,  J.,  delivered  the  opinion  of  the  court — Cope,  C.  J., 
concurring,  and  Norton,  J.,  concurring  specially. 

This  action  was  commenced  by  one  McDaniel  against  the  de- 
fendant to  recover  a  demand  for  services  as  a  surgeon  and  physi- 
cian. The  complaint  avers  that  the  plaintiff,  McDaniel,  is  a  phy- 
sician and  surgeon,  and  was  employed  by  the  defendant  to  per- 
form services  for  him  as  such,  which  he  did  at  the  special  instance 
and  request  of  the  defendant,  and  the  nature  of  the  services  per- 


406 


THE  COMPLAINT. 


[ClIAP.  III. 


formed  are  then  described;  that  for  such  services  defendant  is 
justly  indebted  to  him  in  the  sum  of  $2,855  over  the  above  all 
payments ;  that  the  plaintiff  has  demanded  payment  from  the  de- 
fendant, but  he  has  refused  to  pay  the  same.  The  complaint  also 
avers,  that  defendant  is  indebted  upon  a  promissory  note,  which 
is  set  out.  When  the  case  was  called  for  trial,  on  motion  of  the 
counsel  for  the  plaintiff,  the  name  of  Wilkins,  the  assignee  of 
i^^^^j„^  J^  McDaniel,  was  substituted  as  plaintiff.  The  plaintiff  recovered 
^!™^..  judgment;  defendant  moved  for  a  new  trial,  which  was  denied, 
and  he  appeals. 

The  first  error  assigned  is  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  because  that  por- 
tion of  the  complaint  which  sets  forth  the  claim  for  professional 
services  does  not  aver  any  promise  to  pay,  or  that  the  services 
were  of  any  value.    We  think  the  complaint  in  this  respect  suffi- 

'^^'^^ \  .      cient.    It  follows  substantially  the  form  of  a  count  in  debt,  under 

'^^^^*'''"^**^'^^*^the  old  system  of  pleadings.  By  transposing  the  averments,  it 
"  '^^0^^^^^  can  then  be  read  in  this  way:  that  the  defendant  was  at  a  certain 
^  ^  a^T""^  *i^^  indebted  to  the  plaintiff,  in  a  certain  sum  for  professional 
'"^J^  services  rendered  by  the  plaintiff  at  the  special  instance  and  rc- 

^^^  vxoL      quest  of  the  defendant.    The  promise  to  pay,  alleged  in  the  com- 
5^;^,^  t^  mon  counts  in  assumpsit,  was  a  mere  conclusion  of  law  from  the 

vw5l  v>o;jiot,^  f^ct^  stated,  and  as  the  new  code  only  requires  the  facts  to  be 
'^^'*^^*'^^'  stated,  they  are  sufficient  without  setting  forth  the  conclusions  of 
cOJU^*^;^  law  arising  from  those  facts.*  But,  even  if  the  complaint  was  in 
this  respect  defective,  it  is  too  late  to  make  the  objection  after 
verdict.  It  should  be  made  by  demurrer.  Osgood  v.  Davis,  5 
Cal.,  453;  Suter  v.  Cox,  id.,  415;  Garcia  v.  Satrustegui,  4  id., 
244.     *     *     * 

Eeversed  and  remanded  for  error  in  admitting  improper  evi- 
dence. 


♦Accord:     Farron  v.  Sherwood,  17  N.  Y.  227;  Higgins  v.  Germaine, 

1  Mont.  230.    But  see  Railroad  Co.  v.  Kimmel,  58  Mo.  83,  in  which  the 

'^'     petition  alleged  that  the  defendant  was  plaintiff's  treasurer,  etc.,  and 

*p>u*.-U--cL-that  "He,  as  treasurer  of  plaintiff,  on  final  settlement,  on  to-wit,  the 

.sJ^ J^^JL^   5th  day  of  July,  1872,  was  indebted  to  plaintiff  in  the  sum  of  $298.42, 

*  ^^^^^^  balance  on  his  settlement  as  treasurer."  And  the  court  said:  "The 
petition  in  this  case  is  defective  in  its  omission  to  state  the  defend- 
ants' promise,  which,  though  implied  in  law,  must  be  pleaded  as  a 
fact" 


o-S^ 


Sec.  1.] 


MINING    COMPANY  V.    m'fADDEN. 


407 


y  MINING  CO^IPANY  v.  McFADDEN. 
180  U.  S.,  533.     [1900.] 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court : 

The  Mountain  View  ]\Iining  &  ^Milling  Company  had  made  ap- 
plication for  a  patent  on  a  certain  lode-mining  claim  in  the  land 
office  at  Spokane,  Washington,  against  which  McFadden  «and 
others  duly  filed  their  protest  and  adverse  claim,  and  thereupon 
brought  this  action  "in  aid  of  their  said  adverse  claim,  and  to 
determine  the  right  of  possession,"  in  the  Superior  Court  of 
Stevens  county,  Washington,  which  was  removed  on  the  Mining 
Company's  petition  into  the  Circuit  Court  of  the  United  States 
for  the  District  of  Washington,  but  not  on  the  ground  of  diverse 
citizenship.  Plaintiffs  moved  to  remand  the  cause,  and  the  mo- 
tion was  denied. 

The  petition  for  removal  set  up  "that  the  controversy  herein 
is  a  suit  of  a  civil  nature  arising  under  the  Constitution  and  laws 
of  the  United  States,  brought  in  pursuance  of  the  provisions  of 
§  2326  of  the  Revised  Statutes  of  the  United  States,  providing 
for  the  filing  of  adverse  claims  against  the  application  for  patent 
for  mining  claims,  and  the  bringing  of  suits  in  support  of  said 
adverse  claims." 

The  petition  also  set  forth  that  the  construction  of  two  acts  of 
Congress  was  involved,  namely,  an  act  approved  July  1,  1892  (27 
Stat.  At  L.  62,  ch.,  140),  entitled  "An  Act  to  Provide  for  the 
Opening  of  a  Part  of  the  CoMlle  Reservation,  in  the  State  of 
Washington,  and  for  Other  Purposes,"  and  an  act  of  February 
20,  1896  (20  Stat.  At  L.  9,  ch.,  24),  entitled  "An  Act  to  Extend 
the  Mineral  Land  Laws  of  the  United  States  to  Lands  Embraced 
in  the  North  Half  of  the  Colville  Indian  Reservation."  But  the 
jurisdiction  of  the  Circuit  Court  on  removal  depended  on  plain- 
tiff's statement  of  their  own  claim,  and  that  only  disclosed  an 
action  brought  in  support  of  an  adverse  mining  claim. 

In  Blackburn  v.  Portland  Gold  Min.  Co.,  175  U.  S.,  571,  44  L. 
Ed.,  276,  20  Sup.  Ct.  Rep.,  222,  and  Shoshone  Mining  Company 
V.  Rutter,  177  U.  S.,  505,  45  L.  Ed.,  864,  20  Sup.  Ct.  Rep.,  726, 
we  held  that  a  suit  brought  in  support  of  an  adverse  claim  unde,r 
the  R^sed  Statutes,  §§  2325.  2326^  was.  noL_a  suit  arismg  under 
the  laws  of  the  United  States  in  such  a  sense  as  to  confer  jurisdic- 
tion on  the  Federal  Court  regardless  of  the  citizenship  of  the 
parties. 


CVv>«*'X>-*-'Gtx, 


vx 


S'ljAr'v.^jss. 


(jv^ 


Xa~s_-»     \v»><-X 


408  Tim  COMPLAINT.  [Chap.  III. 

It  is  conceded  by  counsel  on  both  sides  that  those  decisions  are 
controlling,  unless  the  Circuit  Court  was  entitled  to  maintain 
jurisdiction  by  taking  judicial  notice  of  the  fact  "that  the  Moun- 
tain View  Lode  Claim  was  located  upon  what  had  been  or  what 
was  an  Indian  Keservation^"  and  "of  the  act  of  Congress  declar- 
ing the  north  half  of  the  reservation,  upon  which  the  claim  was 
located,  to  have  been  restored  to  the  public  domain;"  notwith- 
standing no  claim  based  on  these  facts  was  stated  in  the  com- 
plaint. But  the  circuit  court  could  not  make  plaintiff's  case 
other  than  they  made  it  by  taking  judicial  notice  of  the  facts 
which  they  did  not  choose  to  rely  on  in  their  pleading.*  The 
averments  brought  no  controversy  in  this  regard  into  court,  in 
respect  of  which  resort  might  be  had  to  judicial  knowledge. 
Thayer,  Treatise  on  Evidence,  ch.  VII;  Oregon  S.  L.  &  U.  N.  R, 
11.  Co.  V.  Skottowe,  162  U.  S.,  490,  40  L.  Ed.,  1048,  16  Sup.  Ct. 
Hep.,  869. 

In  Spokane  Falls  &  N.  K.  R.  Co.  v.  Ziegler,  167  U.  S.  65,  42  L. 
Ed.  79,  17  Sup.  Ct.  Rep.,  778,  plaintiff  alleged  in  his  complaint 
that  he  was  in  the  possession  as  a  pre-emptor,  of  a  tract  of  land, 
and  entitled  to  a  patent  for  the  same  from  the  United  States ;  that 
the  defendant  company,  being  a  corporation  of  the  territory  of 
Washington,  had  seized  a  strip  of  this  land  and  appropriated  it 
for  railroad  purposes  without  his  consent  and  without  having 
compensated  him  therefor;  but  that  the  entry  on  and  seizure  of 
the  land  was  under  and  pursuant  to  the  laws  of  the  territory  of 
Washington  authorizing  railroad  companies  to  appropriate  land 
for  right  of  way  for  railroad  tracks.  As  we  had  judicial  knowl- 
edge that  the  authority  of  the  territory  to  legislate  in  respect  of 
the  right  of  a  territorial  railroad  corporation  to  enter  upon  the 
public  lands  of  the  United  States  was  derived  from  the  act  of 
congress  of  March  3,  1875,  we  held  that  the  plaintiff's  complaint 
disclosed  the  case  of  a  contest  between  a  settler  claiming  title 
under  the  laws  of  the  United  States  and  a  railroad  company 
claiming  a  right  under  an  act  of  Congress.  The  case  before  us 
affords  no  such  basis  for  sustaining  the  jurisdiction. 

In  Powell  V.  Brunswick  County  Supers.,  150  U.  S.,  433,  440,  37 
L.  Ed.,  1134,  1136,  14  Sup.  Ct.  Rep.,  166,  168,  we  said:  "If  it 
appear  from  the  record  by  clear  and  necessary  intendment  that 


♦Contra  by  statute  in  Missouri;  see  Mo.  R.  S.  1899,  sec.  631;   Garth 
V.  Caldwell,  72  Mo.  622. 


Sec.  1.]  MINING  COMPANY  V.  m'fadden.  409 

the  Federal  question  must  have  been  directly  involved  so  that 
the  state  court  could  not  have  given  judgment  without  deciding 
it,  that  will  be  sufficient ;  but  resort  cannot  be  had  to  the  expedi-^ 
ent  of  importing  into  the  record  the  legislation  of  the  state  as  / 
judicially  known  to  its  courts,  and  holding  the  validity  of  such  \o 
legislation  to  have  been  drawn  in  question,  and  a  decision  neces-  \ 
sarily  rendered  thereon,  in  arriving  at  conclusion  upon  the  mat-  ) 
ters  actually  presented  and  considered. ' '    And  see  Yazoo  &  M.  R. 
R.  Co.  v.  Adams,  180  U.  S.,  41,  ante  415,  21  Sup.  Ct.  Rep.,  256. 

The  result  is  that  the  judgment  of  the  Circuit  Court  of  Ap- 
peals must  be  reversed;  the  judgment  of  the  Circuit  Court  must 
also  be  reversed,  and  the  cause  be  remanded  to  that  court  with 
a  direction  to  remand  it  to  the  state  courts,  the  costs  of  this  court 
and  of  the  other  courts  to  be  paid  by  the  Mountain  View  Milling 
&  Mining  Company. 

So  ordered.  A^  ^lAa-^^'^vj^  ^  (y4/5^s^^ 


M^ELWAINE  V.  WALL. 

1'j9  Ind.,  557.      [1902. \ 

Jordan,  J.     *     *     *     Appellant's  statement  of  the  record  dis- 
closes that  the  first  paragraph  of  the  complaint  alleges  that  the  -       j^ 
plaintiff  was  employed  by  the  defendant  as  a  common  laborer  to  ^V>:^*-*^^  Hs 
work  on  the  building;  that  he  was  inexperienced,  and  not  a '"""^^'^y*^^'^^ 
skilled  workman,  and  of  this  fact  the  defendant  had  knowledge;  *%  ^^^^  '  ^ 
that  on  or  about  Oct.  21,  1899,  while  the  plaintiff  was  so  em-  ^'^'^'j'^'^^ 
ployed  about  the  building,  defendant's  superintendent  "care-  ^Txsoj^a*^. 
.lessly  and  negligently  ordered  him  to  climb  upon  a  plate  or  chord  <,*oi3r^ 
constituting  a  part  of  the  building — which  order  plaintiff  was  X^i».  ^ 
bound  to  obey, — and  to  throw  down  some  planks  or  boards;  that    t^'^-o-^-^ 
the  plaintiff  did  not  assist  in  constructing  the  chord,  and  did  not 
know  how  it  was  placed  and  held  in  position,  and  did  not  know- 
how  it  should  be  held  or  fastened  in  position;  that  he  did  not 
know  of  the  imsaf e  condition  of  said  chord  or  plate ;  or  that  the 
same  was  not  properly  fastened  and  tied  in  position;  that  the 
defendant  and  its  said  superintendent  knew  at  the  time  plaintiff 
Avas  ordered  upon  said  plate  or  chord  to  throw  dow-n  said  planks 
or  boards  that  said  plate  or  chord  was  not  tied  and  fastened,  and 
was  unsafe  to  go  upon,  and  was  liable  to  turn  or  fall  Avhen  said 


410  THE  COMPLAINT.  [CllAP.  III. 

])oards  or  planks  were  thrown  down,  and  to  throw  plaintilf  olV 
and  fall  upon  and  injure  him,"  etc.  After  the  averment  of  thesr 
facts  it  is  alleged,  ''that  while  the  plaintiff  was  in  the  performance 
of  his  work  in  throwing  down  said  planks  or  boards,  and  whih^ 
exercising  due  care  and  diligence,  said  plate  or  chord  suddenly, 
without  any  warning  whatever,  turned  and  fell,  and  threw  plain- 
tiff violently  to  the  ground,  thereby  injuring  him,"  etc.  These 
are  all  of  the  facts,  as  we  take  them  from  the  statement  of  appel- 
lant, which  can  be  said  to  show  that  appellant,  as  the  master,  had 
violated  some  duty,  which  he  owed  to  appellee  as  its  servant. 
When  reduced  to  a  simple  proposition,  they  may  be  said  to  show : 
(1)  That  appellee  was  an  unskilled  or  inexperienced  workman, 
of  which  fact  appellant  had  knowledge:  (2)  that  appellant's 
superintendent  "carelessly  and  negligently"  ordered  appellee 
to  climb  upon  a  plate  or  chord  constituting  a  part  of  the  building 
to  throw  down  some  planks  or  boards,  which  order,  as  alleged,  he 
was  bound  to  obey;  (3)  that  he  did  not  know  of  the  unsafe  con- 
dition of  the  plate  or  chord;  (4)  that  appellant  and  the  superin- 
tendent did  know  that  the  chord  or  plate  in  question  was  unsafe. 
It  will  be  observed  that  there  is  no  direct  or  positive  averment 
which  discloses  that  the  chordjwas  jn  any  manner  unsafe  or  im- 
properly_constructedy  or  that  the  place  where  appellee  was  di- 
rected to  go  was  one  of  danger ;  but  the  condition  of  the  chord  to 
thejurning  of  which  the  accident  is  attributed  islei't  wholly  to 
inference  or  surmise.  The  bare  "averments  that  appellee  was 
negligently  ordered  to  go  upon  the  chord  or  plate  to  throw  down 
some  boards,  and  that  he  did  not  know  that  the  chord  was  unsafe, 
but  that  appellant  was  aware  of  that  fact,  are  certainly  not  suf- 
ficient, under  the  circumstances,  to  charge  appellant  with  action- 
able negligence.     From  the  two  facts,  as  averred,  that  appellee 


did  not  know  that  the  chord  was  unsafe,  but  that  appellant  did 


L   Vv*^^dr  

.  /_  ^        know  it  w^as  unsafe,  the  ultimate  or  issuable  fact  that  the  chord 

^^^^^^^.^^^^      or  plate  m  question  was  unjafe_i^_leftJ;o_be  inferred.    The  ques- 
tion with  which  we  have  to  deal  is  not  one  in  regard  to  evidence, 
but  one  which  relates  to  pleading.    While  a  court,  in  dealing  with 
evidence,  may  be  justified  in  drawing  inferences  from  certain 
items  of  evidence,  still  it  is  not  warranted  in  resorting  to  infer- 
ences or  deductions,  where  the  question  involved  pertains  to  the 
Lt,xA*Ji         sufficiency  of  pleading;  for  the  rule  recognized  at  common  law 
^  ~sAA»-*A  and  by  our  code  affirms  that  material  facts  necessary  to  constitute 
d-^:i*:<^^   a  cause  of  action  must  be  directly  averred,  and  cannot  be  left  to 


Sec.  1.]  m'elwaine  V.  WAix.  411 

depend  upon  or  to  be  shown  bv  more  recitals  or  inferences.  Avery 
^TTJ^ugherty,  102  Ind.,  433,  2  N.  E.  123,  52  Am.  Rep.,  690;  Er- 
win  V.  Telegraph  Company,  148  Ind.,  365,  46  N.  E.  667,  47  N.  E. 
663,  and  cases  there  cited.  A  plaintiff  who  seeks  to  recover  on' 
the  ground  of  negligence,  among  other  things,  is  required  in  his 
complaint  to  sufiSciently  allege  actionable  negligence  on  the  part^ 
of  the  defendant.  Railway  Co.  v.  Young,  146  Ind.,  374,  45  N.  E. 
479,  and  cases  cited.  It  is  evident  that  the  pleading  in  question- 
does  not  respond  to  the  requirements  of  the  rules  which  we  assert, 
for  there  is  an  entire  absence  of  any  positive  or  direct  charge  to 
show  that  the  chord  of  the  truss  which  turned  and  threw  appellee 
to  the  ground  was  unsafe  or  defective,  or  that  the  place  to  which 
he  was  directed  to  go  and  engage  in  throwing  down  boards  wasV 
one  of  danger.  The  paragraph,  at  least  for  the  reason  stated, 
was  insufficient  on  demurrer.  From  the  statements  made  by 
appellant's  counsel,  the  second  paragraph  of  complaint  is  open 
to  the  same  objections  imputed  to  the  first,  and  at  least  for  the 
same  reasons  is  bad. 

The  judgment  is  therefore  reversed,  and  the  cause  remanded 
to  the  lower  court,  with  instructions  to  sustain  the  demurrer  to 
the  first  and  second  paragraphs  of  complaint,  with  leave  to  ap- 
pellee, if  requested,  to  amend  his  complaint. 

V-  ^- 


•FARMERS'  &  MERCHANTS'  INSURANCE  COMPANY  v. 

MOORE. 

48  Neb.,  713.     [1896.] 

NoRVAL,  J.    This  was  an  action  by  O.  M.  Moore,  upon  a  policy  Q^^^ji^j^^ 
of  fire  insurance  issued  by  the  defendant  to  one  E.  C.  Warner  in  r:^^,y:^j^,.j..j^ 
the  sum  of  $330  upon  a  dwelling  house  situated  in  the  town  of  -y,^jux^. 
Warnerville,   Madison   county.      The   insured   property   having    ^  ^ 

been  subsequently  wholly  destroyed  by  fire,  this  action  was  com- 
menced to  recover  the  amount  of  said  policy.  The  cause  was 
tried  before  a  jury  and  a  verdict  rendered  in  favor  of  the  plain- 
tiff.   The  defendant  prosecutes  a  petition  in  error. 

At  the  commencement  of  the  trial  the  defendant  objected  to  the 
introduction  of  any  testimony,  on  the  ground  that  the  petition 
failed  to  state  a  cause  of  action,  which  objection  was  overruled  by 
the  court.    This  ruling  is  assigned  for  error.    It  is  insisted  that 


412  TilE  COMPLAINT.  [CHAP.  111. 

the  petition  fails  to  show  that  the  plaintiff  has  any  interest  iu 
the  contract  or  policy  of  insurance  declared  upon.     The  policy, 
a  copy  of  which  is  set  out  in  and  made  a  part  of  the  petition, 
was  executed  and  delivered  to  E.  C.  Warner,  the  alleged  owner  of 
^^,^,^^^    the  insured  premises.    It  contained,  among  other  things,  the  fol- 
^  ^*^    lowing  provisions:    "Loss,  if  any,  payable  to  M.  O.  Moore,  mort- 
.-x\Ajir<»^    gagee,  as  her  interest  may  appear,  subject,  however,  to  all  the 
"'^^""^^^'^^'^onditions  of  this  policy."     The  petition  does  not  disclose  that 
s.->rvAr<»-»    the  policy  was  payable  to  this  plaintiff,  Olive  M.  Moore, "oTthat 
.*^^^^'      it  has  been  assigned  to  her,  or  that  she  was  in  any  manner  a  partx 
v^^,^.vv^^li^  t(rthe~conrract  ofmsurance.    The  face  of  the  policy  shows  thaj 
the  insurance  money  was  to  be  paid  to  M.  0.  Moore.    Therejsnu 
averment  in  the  petition  that  the  jnitials  of  plaintiff's  maiden 
name'were'lncdfrectry  stated  in  th.e"poIicy^  or  that  plaintifT  an^ 
"MrO.  MoorrareonOpjjhesame"pe]raon:    The  petitioiQls,THere^ 
»>«^  •  Tore,  fauTtyin  not  showing  that"1:his  pla^intilf  has  a  right  to  re- 

[Su;-.  /jA-ui^^over  on  the  policy.  The  code  requires  that  actions  must  be  pros- 
.,^ti«^s^oJL-  ecuted  in  the  name  of  the  real  party  in  interest.  In  order  to 
^"^  '^  ^maintain  the  suit,  plaintiff's  interest  should  have  been  affirma- 
■du^  ^WN.«^  lively  disclosL'd  by  proper  averments  ni  the  petition,  liicklin  v. 
5^>X!^^'  Banlc,  8  Neb.,  463.  We  are  all  of  the  opinion  that  for  the  defect 
W^^/--^  indicated  above  the  petition  does  not  state  a  cause  of  action  in 
^<\j^^^rcy^  favor  of  the  plaintiff',  and  for  that  reason  alone,  without  consider- 
rv^  n-  -tx.^  .^^  ^^^  ^^^^^^^  errors  assigned,  the  judgment  must  be  reversed,  and 
t  <v.o^>v<.v^    ^^^  cause  remanded.    Reversed  and  remanded. 


BENNETT  v.  BENNETT. 

65  Neb.,  132.     [1902.] 

Pound,  C.  In  June,  1809,  Emery  W.  Tuttle,  at  that  time  some 
82  years  old,  conveyed  his  farm  of  160  acres,  which  was  substan- 
tially all  the  property  he  owned,  to  his  brother-in-law,  Ezra  Ben- 
nett.     In   November   following,    Levi   Bennett    was   appointed 

guardian  of  said  Emery  W.  Tuttle  by  the  county  court  of  Boyd 

\,r^^  county,  and  afterwards  brought  this  suit  to  set  aside  the  convey- 
ance. A  decree  was  rendered  in  accordance  with  the  prayer  of 
the  petition,  from  which  this  appeal  is  prosecuted. 

A  considerable  portion  of  the  argument  on  behalf  of  appellant 
has  been  directed  to  the  sufficiency  of  the  petition.    In  the  title. 


Sec.  1.]  BENNETT   V.   BENNETT,  413 

plaintiff  describes  himself  as  "Levi  Bennett,  Guardian  of  Emerj' 
W.  Tuttle,"  and  he  does  not  state  anywhere  in  the  petition  ex- 
pressly that  he  sues  as  guardian.    For  this  i-eason,  and  because 
the  words  "guardian  of  Emery  W.  Tuttle"  might,  in  strictness, 
be  treated  as  descriptio  persons  only,  it  is  urged  that  this  suit  is 
brought  by  Levi  Bennett  in  his  personal,  and  not  in  his  repre- 
sentative capacity,  and  is  not  maintainable.    But  so  long  as  the  ^  5i<^;>^,  rv>^ 
plaintiff  describe??  him^plf  ^s  f^[iiardian,  alleges  his  appointment  <r-A^  .io-«*jtj 
as  such,  and  by  the  allegations  of  the  petition  and  nature  of  the  -'^^-^w^-^^^H  ' 
action  shows  clearly  an  intent  to  sue  in  his  representative  capac^  OdX^/Cfc 
ity,  we  may  fairly  so  construe  his  pleading,  notwithstanding  his  -"'^^^^^■J-  Vjl. 
failure  to  say  expressly  that  he  sues  as  guardian.     Williams  v.    >-^^^''*'^'* 
Eikenbary,  36  Neb.,  478,  54  N.  W.,  852.  ^a'*^-- 

It  is  further  objected  that  the  petition  fails  to  allege  that  Levi 
Bennett  was  duly  appointed  guardian,  and  sets  up  no  facts  show- 
ing that  the  county  court  acquired  any  jurisdiction  to  make  the 
appointment.  The  judgment  of  a  court  of  general  jurisdiction 
is  presumed  to  be  regular  and  valid.  Hence  in  pleading  such  gri 
judgment  it  is  enough  to  allege  the  parties,  its  rendition  and  the! 
date  thereof,  the  court  by  which  it  was  rendered,  and,  if  not  a 
court  of  whose  jurisdiction  judicial  notice  is  taken,  that  it  is  one  L  ^V.J^ 
of  general  jurisdiction,  without  setting  forth  in  detail  the  facts  /^^|;,4^.vs53 
whereby  jurisdiction  was  acquired  in  the  particular  case.  Wel- 
ler  V.  Dickinson,  93  Cal.,  108,  28  Pac,  854;  Kunze  v.  Kunze 
(Wis.\  68  N.  W.,  891,  59  Am  .St.  Rep.,  857;  Scanlan  v.  Murphy, 
51  Minn.,  536,  53  N.  W.,  799 ;  City  of  Hammond  v.  Evans,  23  Ind. 
App.,  501,  55  N.  E.,  784;  Nicholas  v.  Farwell,  24  Neb.,  180,  187, 
38  N.  W.,  820 ;  Holt  Co.  Bank  v.  Holt  Co.,  53  Neb.,  827,  74  N. 
W.,  259.  Code  Civ.  Proc,  §  127,  by  its  terms,  applies  only  to 
courts  or  tribunals  of  special  jurisdiction.  Similar  provisions  in 
the  Codes  of  other  slates  are  so  construed.  Weller  v.  Dickinson, 
supra;  People  v.  Bacon,  37  App.  Div.,  414,  55  N.  Y.  Supp.,  1045, 
In  consequence,  it  is  unnecessary  to  plead  that  a  judsrment  was  ?  ">^^*-*^*^ 
duly  recovered,  wherejrend.ered_bv_a  court  of  general  ;iurisdiction.  l-vvokAvJt.  ^^ 
As  to  all  matters  of  probate,  settlement  of  estates,  and  guardian-  ^wVy^  .w 
ship,  the  county  courts  of  this  state  are  courts  of  general  jurisdic-  ^>^^  >junxjA. 
tion.  They  alone  have  original  jurisdiction  over  those  subjects, 
and  their  jurisdiction  thereof  is  general.  People  v.  Gray,  72  111., 
343;  Epping  v.  Robinson,  21  Fla.,  36;  Guilford  v.  Love,  49  Tex., 
715;  Glade  V.White,  42  Neb.,  336,  60  N.W.,  556.     *     *     * 

Jud(]ment  affirmed. 


414  THE  COMPLAINT.  [ChAP.  111. 

BERRY  V.  DOLE. 

87  Minn.,  47 ].      [1902.] 

Start,  C.  J.  Appeal  by  the  plaintiff  from  an  order  of  the 
district  court  of  the  county  of  Hennepin  sustaining  a  general 
demurrer  to  his  complaint.  The  here  material  allegations  of  the 
complaint  are  to  the  effect  following:  That  on  and  for  a  long 
time  prior  to  June  29,  1900,  the  defendants  maintained  in  a  pub- 
lic street  of  the  city  of  Minneapolis  a  wooden  structure  or  bridge 

^M^^^^-^A^  over  the  gutter  therein  to  facilitate  passage  of  teams  and  wagons 
of  their  tenants  and  their  customers  into  an  alley  upon  their 
premises,  and  invited  the  public  and  the  plaintiff  to  use  the  same ; 
that  on  that  day  the  wooden  structure  or  bridge  was,  and  for  a 
long  time  prior  thereto  had  been,  in  a  defective,  rotten  and  un- 
safe condition,  which  condition  was  well  known  to  defendants, 
although  plaintiff  had  no  notice  or  knowledge  thereof;  that  on 
that  day  plaintiff,  in  the  course  of  his  employment  as  a  servant 
of  a  customer  of  one  of  the  defendant 's  tenants,  was  lawfully  and 
Avith  due  care,  and  by  invitation  of  the  defendants,  driving  over 
the  bridge,  from  the  alley  to  the  street,  a  loaded  wagon,  upon 
which  he  was  seated,  when  the  bridge  suddenly,  and  without  fault 
of  plaintiff,  broke  down  and  gave  way  under  the  wagon,  and 
thereby  caused  it  to  lurch  suddenly  to  one  side,  and  throw  plain- 
tiff therefrom,  head  foremost,  violently  to  the  pavement  of  the 
street,  whereby  he  sustained  serious  personal  injuries.  As  against 
a  demurrer,  the  facts  essential  to  a  cause  of  action  must  bej 
directly  alleged,  and  not  by  way  of  recital,  inference,  or  argu-j 
ment.    Tested  by  this  rule,  the  complaint  does  not  state  a  cause 

^^»A>x>>^-^pf  action,  in  that  it  contains  no  allegation  that  the  plaintiff  was 
injured  by  reason  of  any  negligent  act  on  the  part  of  the  defend- 
ants.   It  is  true  that  it  alleges  the  disrepair  and  the  unsafe  condi- 
/v  «ywUx.J^JQji  Qf  ii^Q  bridge  but  it  does  not  allege  the  fact  that  it  was  the 
'%  ^^tf  defendant 's  duty  to  keep  it  in  repair,  nor  that  the  bridge  broke; 
down  and  gave  way  under  the  w^agon  by  reason  of  an  act  or  omis- 
sion of  the  defendants,  or  its  alleged  condition,    ^ucli  ultimate 
A  \^    facts  may  possibly  be  inferred  from  the  facts  alleged^  and  prob- 
ably would  be  in  support  of  a  pleading,  if  the  question  of  its  suf- 
l    ficiency  was  raised  for  the  first  time  in  this  court,  or  after  ver- 
\  diet,  but  will  not  be  as  against  a  demurrer. 
^  Order  affirmed.* 

*See  also  City  of  Logansport  v.  Kihm,  159  Ind.  68,  holding  that  a 
complaint  did  not  sufficiently  connect  the  defective  condition  of  the 
street  with  the  accident  complained  of. 


Sec.  1.]  HAMILTON  V.  m'indoo.  415 

HAMILTON  V.  McINDOO. 

81  Minn.,  32 i.     [1900.] 

Collins,  J.  Action  brought  by  the  plaintiff,  as  an  administra- 
tor de  bonis  non  of  the  estate  of  Russell  Search^  deceased,  upon 
a  judgment  rendered  in  his  favor  as  such  administrator  in  a  court 
of  competent  jurisdiction  in  the  state  of  Illinois.  On  findings  of 
fact,  judgment  was  ordered  for  the  plaintiff',  and  this  appeal  is 
from  an  order  denying  the  defendant's  motion  for  a  new  trial. 

The  question  to  be  met  at  the  outset  arises  out  of  the  contention 
that  the  complaint  does  not  sufficiently  allege  plaintiff's  appoint- 
ment as  administrator  de  bonis  non.  The  allegations  were  "that, 
prior  to  the  proceedings  had  in  obtaining  the  judgment  herein- 
after referred  to,  the  above-named  Russell  Search  died  in  the 
state  of  Illinois  intestate,  and  the  plaintiff,  E.  C.  Hamilton,  had 
been  duly  appointed  administrator  de  bonis  non"  of  said  estate, 
had  duly  qualified,  and  ever  since  had  been,  and  now  is,  such  ad- 
ministrator. It  is  claimed  by  the  plaintiff  that  it  sufficiently  ap- 
pears from  these  allegations  that  the  plaintiff  was  appointed  ad- 
ministrator in  the  state  of  Illinois,  while  it  is  contended  on  behalf 
of  the  defendants  that  it  clearly  appears  from  the  wording  of  the 
allegations,  and  must  be  presumed,  in  the  absence  of  any  aver- 
ment to  the  contrary,  that  the  appointment  was  by  a  competent 
court  within  the  state  of  Minnesota.  We  are  not  compelled  to 
determine  this  difference  of  opinion,  for  in  either  case  the  com- 
plaint failed  to  state  facts  sufficient  to  constitute  a  cause  of 
action.  It  merely  alleged  the  death  of  Search  and  the  due  ap- 
pointment of  plaintiff  as  administrator  de  bonis  non.  It  was  said 
by  this  court  in  Chamberlain  v.  Tiner,  31  Minn.,  371  (18  N.  W., 
97),  and  the  authorities  are  abundant  in  support  of  the  statement' 
that ' '  it^is  not  now  necessary,  as  it  was  formerly,  to  make  prof ert 
of  letters  testamentary  or  of  letters  of  administration  in  the 
pleadings ;  but  it  is  necessary  for  the  plaintiff'  who  sues  as  execu- 
tor or  administrator  to  allege  in  a  direct  and  issuable  form  that 
he  is  such.     This  proj)erIy  should  be  done  by  alleging  that  he  is  .      .  . 

executor  or  administrator  by  virtue  of  letters  issued  by  a  probate/jLV\^i.<»  «y^ 
court  of  some  county  giving  the  name  of  the  court  and  the  term!  yw^ks-^  i»jv/v 
at  which  the  letters  were  granted. ' '  No  form  of  words  is  abso?  ^-^^^^^^"^^^  V 
lutely  essential  to  show  plaintiff's  authority,  but  the  fact  must  tftl-SlA^ 
appear  substantially,  so  that  issue  may  be  made  upon  the  allega- 


)Ci-d/vy*r>,    )>X»-i 


416 


THE  COMPLAINT. 


[ClIAP.  III. 


<U)3XxA-. 


J_..s^x.a>^^• 


tions,  if  it  is  proper  to  do  so.  See,  also,  Rossman  v.  Mitchell,  73 
Minn.,  198  (75  N.  W.,  1053),  in  which  the  sufficiency  of  an 
'allegation  in  a  complaint  as  to  the  appointment  of  a  plain- 
tiff as  a  receiver,  under  the  insolvency  law  of  1881  and  acts 
amendatory,  was  considered.  Again  it  has  been  held,  with  good 
reasons  therefor,  that  in  an  action  by  an  administrator  de  bonis 
non  the  complaint  should  state  the  name  of  the  original  rcprc^ 
sentative.  and  that,  as  no  such  administrator  can  be  appointed 
while  there  is  an  original  executor  or  administrator,  there  must 
be  an  averment  that  he  is  dead,  or  has  resigned,  or  has  been  dis- 
charged, or  that  his  letters  have  been  revoked,  as  the  case  mav 
be.    8  Enc.  PI.  &  Prac,  669. 

Plaintiff's  counsel  contend  that  their  failure  to  sufficiently  al- 
lege in  the  complaint  the  representative  character  of  their  client 
has  been  waived,  because  no  demurrer  was  interposed  upon  the 
ground  that  plaintiff  had  not  legal  capacity  to  sue,  or,  if  a  de- 
murrer would  not  lie,  that  there  has  been  a  waiver,  because  the 
question  of  plaintiff's  capacity  to  sue  was  not  raised  by  answer. 
Gen.  St.  1894,  §§5234,  5235.  This  contenticn  is  completely 
answered  by  what  was  said  in  Rossman  v.  Mitchell,  supra,  when 
disposing  of  a  motion  for  a  reargument,  in  these  words:  "The 
.complaint  in  question  stated  a  cause  of  action  in  favor  of  an 
^assignee  or  receiver  of  the  insolvent,  if  there  was  one;  but  it 
failed  to  state  facts  showing  that  the  plaintiff  was  such  receiver 
or  assignee."  The  complaint  here  failed  to  state  a  cause  of 
action,  and  hence  an  objection  on  that  ground  was  not  waived  by 
failing  to  take  advantage  of  the  defect  by  demurrer  or  bv  answer. 
The  question  could  be  raised  by  objection  to  the  introduction  of 
the  documentary  testimony,  or  by  motion  to  dismiss  when  plain- 
tiff rested,  as  it  was. 

The  point  is  also  made  by  plaintiff's  counsel  that  the  action 
was  not  brought  bj'  their  client  as  administrator,  but  in  his  in- 
dividual capacity,  that  he  had  the  right  to  sue  as  an  individual, 
and  therefore  that  allegations  as  to  his  representative  capacity 
were  unnecessary ;  cases  being  cited  in  support  of  this  contention. 
At  common  law,  and  to  maintain  some  causes  of  action,  an  execu- 
tor or  administrator  could  sue  in  either  his  official  or  individual 
capacity,  at  his  option;  but  whether  the  present  cause  of  action 
( is  of  that  class  we  need  not  decide,  "When  a  statute  requires,  as 
it  does  here,  that  actions  must  be  prosecuted  in  the  name  of  the 


real  party  in  interest,  suits  instituted  by  an  executor  or  admin- 


-^3>ro>.      \-~vJLS»^-Q5»-©iL«- 


Sec.  1.]  HAMILTON  V.  m'indoo.  417 

.istrator  upon  a  cause  nf  action  hplonmnnr  to  him  in  his  representa- 
tjye^capacity  must  be  brought  by  him  in  that  capacity  (8  Enc. 
PI.  &  Prac,  659,  660),  and  he  is  expressly  authorized  to  sue  by 
Gen.  St.  1894,  §  5158.    Order  reyersed.* 


STATE  y.  C,  M.  &  ST.  P.  R.  R.  CO. 

4  S.  D.,  PMl.     \1893.] 

Corson,  J.  This  was  an  action  by  the  state  to  enjoin  the  de- 
fendant from  continuing  an  alleged  nuisance.  The  defendant 
demurred  to  the  complaint  on  the  ground  that  it  did  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  and  the  same  was 
sustained  by  the  court.  From  the  order  sustaining  the  demurrer, 
the  plaintiff  appeals.  The  defendant  specifies  as  the  particular 
ground  of  objection,  in  the  brief  filed  in  this  court,  that  there 
is  no  allegation  in  the  complaint  that  the  defendant  is  a  corpora- 
tion. The  only  indication  of  the  character  in  which  the  defend- 
ant is  sued  is  in  the  title.  The  learned  counsel  for  the  respondent 
contend  that  the  defendant  is  sued  by  a  name  indicating  that  it 
is  not  a  natural  person,  but  a  company  of  some  kind,  and  that  no 
facts  are  stated  to  show  that  it  is  an  artificial  being,  capable  of 
being  sued. 

It  is  true  that  by  section  2908,  Comp.  Laws,  it  is  provided 
that,  "in  all  ciyil  actions  brought  by  or  against  a  corporation,  it 
shall  not  be  necessary  to  proye  on  the  trial  of  the  cause,  the  ex- 
istence of  such  corporation,  unless  the  defendant  shall,  in  the 
answer  expressly  ayer  that  the  plaintiff  or  defendant  is  not  a 
corporation."  But  an  allegation  that  the  defendant  is  a  corpora- 
tionjs,  we  think,  still  necessary,  and  the  language  of  the  section 
presupposes  that  the  defendant  is  sued  as  a  corporation.  In 
what  manner  can  a  court  be  adyised  that  the  defendant  is  sued 
as  a  corporation,  unless  it  is  so  alleged  in  the  complaint?  In 
the  recent  case  of  People  y.  Central  Pac.  R.  R.  Co.,  83  Cal.,  393, 
23  Pac,  303  decided  in  1890),  the  supreme  court  of  that  state,' 
in  passing  upon  this  question,  says :  "The  defendant  is  sued  by 
a  name  indicating  that  it  is  not  a  natural  person,  but  a  company 

♦Accord:     State  to  use  of  Tapley  v.  Matson,  38  Mo.  489.     But  see 
Kelley  v.  Love,  35  Ind.  106. 
27 


418  THE  COMPLAINT.  [CUAP.  III. 

of  some  kind ;  but  there  is  no  averment  of  the  fact  of  incorpora- 
tion, or  of  any  fact  to  show  that  it  is  an  artificial  being,  capable 
of  boinc:  sued.  Nor,  if  incorporated,  is  there  any  averment  to 
show  where,  or  under  what  law,  so  that  the  court  may  determine 
^  where  the  jurisdiction  of  its  person  lies.  An  averment  of  de- 
->o3-ft-  1  fendant's  corporate  existence  is  necessary  in  everv  count  of  ^ 
^complaint  against  a  corporation.     Loup  v.  Railroad  Company, 


H'S  Ual.,  yy."     Mechanics'  Banking  Ass.  v.  Spring  Valley  Shot 
&  Lead  Co.,  13  How.  Pr.,  227.    Judge  Bliss,  in  his  work  on  Code 
Pleading,  (section  258),  says:     "But  a  corporation  is  an  arti- 
ficial per.sonality,  not  presumed  to  exist,  even;  and  the  phrase 
may  stand  for  such  personality,  or  for  a  joint  stock  company,  or 
for  a  partnership,  or  for  a  private  person,  or  for  nothing  at  all. 
The  allegation,  then,  that  the  plaintiff  is  a  corporation,  even  if 
permitted  to  be  made  in  general  terms,  would  seem  to  be  essential, 
to  show  its  right  to  bring  the  suit."    And  in  section  260,  he  says : 
* '  In  regard  to  actions  against  corporations,  the  same  general  rule 
should  prevail."    We  are  of  the  opinion  that  the  rule  laid  down 
by  Judge  Bliss  and  the  Supreme  Court  of  California  is  the  safer 
and  better  rule,  though  there  are  courts  holding  a  contrary  rule. 
-o^^'-*^  oira/Jt-iIn  the  case  of  Express  Co.  v.  Harris,  21  N.  E.  Rep.,  340,  decided 
>^  -^  suf^^ky  ^j^g  Supreme  Court  of  Indiana  in  1889,  that  court  says:    "The 
""""^^"^    ^uJt:   Jiame  of  the  defendant  (Adams  Express  Company)  imports  that 
^^[Xj*-^)-  |t  is  a  corporation,  and  it  w^as  therefore  not  necessary  to  specifi- 
tx  ^^^^-ro^^t-*^  cally  aver  that  it  was  a  corporation."    But,  with  great  respect 
^^•^'^''*^'^'        for  that  court,  we  cannot  agree  with  its  conclusions.    As  was  said 
in  the  California  case,  the  name  indicates  '  *  that  it  is  not  a  natural 
person  but  a  company  of  some  kind ' '  but  whether  a  corporation, 
or  an  unincorporated  association,  does  not  appear.    We  are  not 
aware  of  any  principle  of  law  that  Avill  authorize  a  court  to  pre- 
sume  that  it  is  a  corporation,  any  more  than  it  would  presume 
that  it  was  an  unincorporated  association.     A  similar  view  as 
to  the  necessity  of  alleging  in  the  complaint  that  the  defendant 
is  a  corporation  was  taken  by  the  Supreme  Court  of  North  Caro- 
lina in  Stanley  v.  Railroad  Company,  89  N.  C,  331. 

The  learned  attorney  general  further  contends  that  the  defect, 
if  it  exists,  cannot  be  reached  by  a  demurrer  to  the  complaint,  on 
the  ground  that  it  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.  But  we  are  of  the  opinion  that,  under  the  pro- 
I  visions  of  our  code,  the  objection  can  only  be  made  under  such 
iCCc'***"         I  a  demurrer.    It  cannot  be  raised  under  any  of  the  other  grounds 


Sec.  1.]  STATE  V.  c,  m.  &  st.  p.  r.  r.  co.  419 

of  demurrer  specified  in  section  4909,  Comp.  Laws.     The  attor- 
ney general  cites  in  support  of  his  contention  Insurance  Co.  v. 
Baldwin,  37  N.  Y.,  651,  and  Bank  v.  Donnell,  40  N.  Y.,  410. 
These  were  both  eases  in  which  the  alleged  corporation  was  the 
plaintiff.    In  the  latter  case,  two  of  the  judges  dissented.    Judge 
Blis.s,  in  commenting  on  these  decisions,  in  a  note  to  section  258, 
says:    "If  evidence  of  incorporation  is  necessary,  it  is  a  part  of 
the  plaintiff's  case.     He  is  only  bound  to  prove  the  facts  consti- 
tuting his  cause  of  action ;  and,  if  any  such  fact  is  omitted  in  the 
pleading,  it  should  be  demurrable  for  that  reason."    While  under \ 
section  2908,  Comp.  Laws,  the  party  is  relieved  from  proving  the  / 
fact  of  incorporation,  unless  it  is  expressly  averred  that  the  Y 
plaintiff  or  the  defendant  is  not  a  corporation,  the  rule  as  to/ 
pleading  the  incorporation  is  not  changed,  and  the  omission  off 
this  allegation  renders  the  complaint  subject  to  demurrer.     "We' 
are  of  the  opinion,  therefore,  that  the  learned  Circuit  Court  prop- 
erly sustained  the  demurrer  of  the  defendant,  and  the  order  sus- 
taining the  demurrer  is  therefor  affirmed.  All  the  judges  concur. 


HOLDEN  V.  GREAT  WESTERN  ELEVATOR  COMPANY. 
69  Minn.,  527.     [1897.] 

Mitchell,  J.    This  action  was  brought  to  recover  damages  for 
the  wrongful  conversion  of  the  personal  property  of  the  plain-  q^Jou-y^ 
tiff  by  the  defendant.     The  title  of  the  action  was  "Holden,  o-«y,«,Cs,.^-  « 
Plaintiff,  against  Great  Western  Elevator  Company,  j_jQQrpm:az.  <i-'<^^'V*^*^^ 
tion. ' '  but  there  was  no  allegation  in  the  complaint  that  the  de-  P!^^^^^^^ 
fendant  was  a  corporation.    The  defendant  appeared  by  the  name  v^Ay^-o^x^vs." 
by  which  it  was  sued,  and  demurred  to  the  complaint  on  the 
ground  that  it  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action.    From  an  order  overruling  the  demurrer,  the  defend- 
ant appealed. 

The  particular  objection  urged  against  the  complaint  is  that 
it  contained  no  allegation  that  the  defendant  was  a  corporation. 
Wejiave.  then,  the  anomalv  of  the  defendant  appearing  by  the  OMy  ^^♦'^^ 
name  by  which  it  is  sued,  thereby  admitting  that  it  is  an  entity  7^^'^Cl.lt^ 
of  some  kind  capable  of  appearing  as  a  party  to  an  action,  and/y^o^^-^-^^  *^»>r^ 
objecting  to  the  complaint  because  it  does  not  state  what  kind    ^eC^^J^ 


420  THE  COMPLAINT.  [CllAP.  111. 

of  an  entity  it  is.  And  even  if  it  is  necessarj-,  in  an  action 
against  a  corporation,  to  allege  its  corporate  existence,  it  v/ould 
^lu^  ^\^  seem  to  be  illogical  to  hold  that  the  omission  to  do  so  could  be 
|^^y^J^taken__ad vantage  of  by  general  demurrer.  But,  waiving  this 
y><, -vlst^^v-^jk^  question,  we  are  of  opinion  that  in  an  action  by  or  ai:am'>tJL 
n^.d^wvv..  ^^gor^oration  it  is  unnecessary  to  aver  the  incorporation,  except  in 
cases  where  theaction,  in  its  gist  or  substance,  involves  the__tae^ 
of  corporate  existence,  in  which  case,  of  course,  it  would  have  to 
Be  alleged  the  same  as  any  other  fact  constituting  the  cause  of 
action.  The  decisions  on  this  question  are  conflicting,  sometimes 
^Suvi«K/vo  so  in  the  same  jurisdiction.  Our  own  decisions  are  not  entirely 
^'^J^^^*-^'*^*-^  free  from  this  criticism.  But,  in  our  judgment,  the  doctrine  just 
^  0)  stated  is  sound  on  principle,  and  supported  by  the  weight  of 

authority.  ^lo  averment  of  incorporation  was  required  at  com- 
mon law^*  and  we  have  no  statute  requiring  it.  When  an  action 
is  brought  by  or  against  a  corporation,  there  is  no  more  reason, 
in  the  nature  of  things,  why  it  should, be  necessary  to  allege  that 
it  is  an  artificial  person,  than  there  is  in  an  action  by  or  against 
a  natural  person  to  allege  that  he  is  such.  It  is  not  a  fact  which 
enters  into  or  constitutes  any  part  of  the  cause  of  action.  We 
strongly  intimated  in  Rowland  v.  Jeuel,  55  Minn.,  102,  56  N.  W., 
581,  that  such  were  our  views  of  the  law,  which  are  in  accord 
with  those  expressed  by  Mr.  Freeman  in  his  notes  to  Harris  v. 
Manufacturing  Company,  29  Am.  Dec,  375,  and  to  Miller  v.  Min- 
ing Company  (Idaho),  35  Am.  St.  Rep.,  291  (s.  c.  31  Pac,  803), 
in  which  we  fully  concur.    Order  affirmed. 


CONSIDINE  V.  GALLAGHER. 

31  Wash.,  669.     [1903.] 

FuLLERTON,  C.  J.  The  respondent,  Considine,  entered  into  a 
contract  with  the  defendant  Gallagher  by  the  terms  of  which  the 
defendant  undertook  to  furnish  all  of  the  necessary  materials 


*In  Wolf  V.  City  Steamboat  Company,  7  Common  Bench  Reports, 
103  [1849],  in  ruling  on  a  similar  demurrer,  Justice  Maule  said: 
1  "There  is  no  positive  rule  that  I  am  aware  of  which  requires  such 
\  a  mode  of  description  as  the  defendants'  counsel  insists  upon  in  this 
lease;  nor  is  the  description  which  is  given  at  all  out  of  the  usual 
I  form;  it  impliedly  amounts  to  an  allegation  that  the  defendants  are  a 
'corporate  body." 


Sec.  1.] 


CONSIDINE  V.  GALLAGHER.  421 


and  construct  for  the  respondent  a  dwelling  house  according  to 
certain  plans  and  specifications  agreed  upon  between  the  parties        ^-^^^ 
for  a  fixed  consideration.    To  secure  the  faithful  performance  of  ^  ^^^^^,5^ 
the  work,  the  defendent  entered  into  a  bond,  with  the  appellant  ^^^^^^^^  ^    r 
as  surety,  in  the  sum  of  $2,000,  conditioned  that  he  would  carry  ^^^^^^^  ^^ 
out  the  contract.     The  defendant  thereafter  entered  upon  the  .y^,^,^^  xA^ 
prosecution  of  the  work,  and  partially  completed  the  same,  finally  c^vvSX*-^^ 
abandoning  it  before  completion.     The  respondent  thereupon,  a^^^w^^^r-Xls 
after  notifying  the  surety  to  complete  it,  and  after  its  refusal 
to  do  so,  completed  the  building  himself  at  a  cost  exceeding  the 
original  contract  price  by  more  than  the  amount  of  the  bond.    He 
brought  this  action  upon  the  bond  to  recover  for  the  loss  to  the 
amount  of  the  penalty  named  in  the  bond.  ^^ 

A  demurrer  was  interposed  to  the  complaint  on  the  S^^und  i^^^^^*^ 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  action,  J^^^^^^^^,^^^^ 
and  overruled  by  the  trial  court,  which  ruling  constitutes  |^^^  ,^^^^^^^,y^ 
first  error  assigned.     The  complaint  averred  that  the  building  '^^  ^„^Vj^ 
contract  was  entered  into  on  the  12th  day  of  December,  1900, 
while  the  bond  as  set  out  in  the  complaint  bore  date  as  of  the 
19th  day  of  December,  1900.     The  contention  is  that  the  bond 
was  executed  so  long  subsequent  to  the  original  contract  that  it 
.cannot  be  presumed  to  be  a  part  of  the  same  transaction,  or 
supported  by  the  original  consideration,  and  for  that  reason  it 
was  necessary  that  it  be  alleged  that  the  bond  was  made  upon 
sufficient  consideration,  in  order  to  state  a  cause  of  action  upon 
it.    The  general  rule  in  regard  to  guaranty  is  that,  if  the  guar-"^  ^^j,Aa  (^ 
anty  and  contract_guaranteed  are  a  part  of  the  game  transactiog^  ^  S»>.na§5^ 
th7"consideration  for  the  latter  supportsjhe,.  former ;  while,  if  ; 
tiiey  are  not  one  transaction,  the  bond  mugt  bg  supported  by_a    \ 
^sideration     independent     of     the     consideration     for     the  j 
original__  contract.     But    this    rule     does    not     aid    the     ap- 
pellant here.      It    is    a    rule    of    pleading,    and    not    a    rule 
of  evidence,  that  he  is  contending  for.    Hence,  if  the  complaint  ^^^^^  ^^^^ 
in  any  form  contains  an  allegation  of  consideration  for  the  bond,  ;^jc^xr^*>^  -^ 
or  contains  an  allegation  of  fact  from  which  consideration  is  V^>-A  t^ 
l^^lied,  it  is  sufficient.     Here  the  complaint,  at  least,  does  the  .^;;;;^^;^^ 
Mfer.    Th^ond  is  set_out  in  full  therein,  even  as  to  the  manner  ^^^__^,.j^ 
of  Sts  execution,  showing  it  to  have  been  an  instrument  under  \^^,,^^,^^ 
sealj  and  the  rule  of  the  common  law  is— and  it  has  not  been  o*^*iAj 
nhZ!:^9A  in  this  state— that  a  contract  under  seal  imports  a  con-    ^;;;^^V 


'"VvSLjCAAA^ 


422  THE  COMPLAINT.  [ChAP.  III. 

sideration.*  In  such  a  case  want  of  consideration,  if  available  at 
-allTls  a  matter  of  defense.  6  Am.  &  Eng.  Enc.  of  Law  (2d  Ed.) 
pp.  7G2,  763. 

The  other  errors  assigned  are  based  upon  the  sufficiency  of  the 
evidence  to  support  the  findings  of  fact,  but,  as  no  exceptions  to 
the  findings  were  taken,  they  cannot  be  considered. 

The  judgment  appealed  from  is  affirmed. 


TOOKER  V.  ARNOUX. 

76  N.  r.,  397.     [1879.] 

Appeal  from  judgment  of  the  General  Term  of  the  Court  of 
'Common  Pleas,  in  and  for  the  city  and  county  of  New  York, 
affirming  a  judgment  in  favor  of  plaintiff,  entered  upon  a  ver- 
dict. 

The  facts  alleged  in  the  complaint  were  as  follows: 

"First.— That  on  or  about  the  25th  day  of  July,  1872,  at  the 
city  of  New  York,  James  Watson  made  and  delivered  to  the 
plaintiff  for  value  his  certain  draft  or  order,  in  the  words  and 
figures  following: 

*'New  York,  July  25,  1872. 
"William  Henry  Arnoux: 

"Dear  Sir — Please  pay  to  William  T.  Tooker  the  sum  of  five 
hundred  and  fifty-six  (556)  dollars,  out  of  the  money  to  be  real- 
ized from  the  sale  of  the  houses  on  the  north  side  of  46th  street. 
City  of  New  York,  and  known  as  Nos.  305,  307  and  309,  East  46th 

street. 

"James  Watson," 

"Second. — That  thereafter,  and  on  or  about  said  day,  the 
plaintiff  presented  said  draft  or  order  to  said  Arnoux,  who  there- 
upon for  value  duly  accepted  the  same." 


*It  has  been  often  said  that  a  seal  imports  a  consideration,  as  if  a 
consideration  were  as  essential  in  contracts  by  specialty  as  it  is  in 
the  case  of  parol  promises.  But  it  is  hardly  necessary  to  point  out 
the  fallacy  of  this  view.  It  is  now  generally  agreed  tJiat  the  specialty 
obligation,  like  the  Roman  stipulatio,  owes  its  validity  to  the  mere 
fact  of  its  formal  execution." 

Ames,  Specialty  Contracts  and  Equitable  Defenses,  9  Harvard  Law- 
Rev.  49. 


Sec.  1.]  TOOKER  v.  arnoux.  423 

"Third. — That  on  the  6th  day  of  August,  1872,  said  Arnoux 
paid  on  account  thereof  one  hundred  dollars,  and  there  is  now 
due  on  said  draft  or  order,  from  the  defendant,  the  sum  of  four 
hundred  and  fifty-six  dollars,  with  interest  from  said.  25th  day  of 
July,  1872." 

And  judgment  was  asked  for  that  amount. 

The  answer  admitted  the  acceptance  of  the  order,  the  payment 
of  $100,  but  denied  that  there  was  any  money  realized  from  the 
sale  of  the  houses,  or  that  there  was  due  plaintiff  the  sum 
claimed. 

At  the  beginning  of  the  trial,  defendant's  counsel  moved  to 
dismiss  the  complaint  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  The  motion  was  denied, 
and  said  counsel  duly  excepted.  Plaintiff  offered  evidence  of  the 
sale  of  the  houses  specified  in  the  order.  This  was  objected  to 
by  defendant's  counsel  on  the  ground  that  this  was  not  averred 
in  the  complaint.  No  application  was  made  for  an  amendment 
of  the  complaint. 

The  court  directed  a  verdict  for  plaintiff,  which  was  rendered 
accordingly. 

R^VPALLO,  J.  At  the  opening  of  the  trial  the  defendant  moved 
to  dismiss  the  complaint  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  The  motion  was  denied 
and  exception  taken.  The  reason  assigned  was  that  the  defend- 
ant should  have  demurred. 

This  position  is  in  conflict  with  section  148  of  the  Code  and 
with  many  decisions  of  this  court.  If  the  complaint  was  bad  in 
substance  the  objection  was  available  on  the  trial  and  the  motion 
to  dismiss  should  have  been  granted.  (Schofield  v.  Whitelegge, 
49  N.  Y.,  259;  Coffin  v.  Reynolds,  37  id.,  640;  Emery  \.  Pease,  20 
id.,  62.) 

We  think  the  complaint  was  clearly  bad.  The  sale  of  the  houses 
mentioned  in  the  order  and  the  receipt  of  money  from  such  sale 
were  conditions  precedent  to  the  defendant's  liability  on  his 
acceptance,  and  those  facts  should  have  been  averred.  In  the" 
absence  of  such  averments  no  indebtedness  on  his  part  to  the 
plaintiff  appeared,    (Munger  v.  Shannon,  61  N.  Y.,  251,  260.) 

The  denial  in  the  answer  of  the  receipt  of  any  such  moneys  did 
not  supplement  the  complaint  in  this  respect.  In  Bate  v.  Graham 
(11  N.  Y.,  237)  the  answer  contained  an  affirmative  allegation  of 
the  fact  which  the  complaint  should  have  averred,  but  in  Scho- 


424  THE  COMPLAINT.  [ChAP.  III. 

field  V.  Whitelegge,  as  in  the  present  case  the  answer  contained 
a  denial  of  the  essential  fact,  and  it  was  held  that  such  denial  did 
not  cure  the  defect  in  the  complaint. 

The  complaint  in  the  present  case  cannot  be  sustained  by  virtue 

/of  section  162  of  the  Code,  which  provided  that  in  an  action  upon 

/  an  instrument  for  the  payment  of  money  only,  it  should  be  suffi- 

]   cient  to  set  forth  a  copy  of  the  instrument  and  allege  the  amount 

-.       ■•  due  thereon.    It  was  decided  by  this  court  in  Conkling  v.  Gandall 

l^jJl)^]^^™^'^-  (1  Keyes,  231),  that  section  162  was  not  applicable  where  the 

^^T^^^L         liability  of  the  defendant  was  conditional,  and  depended  upon 

L^^jWw^        facts  outside  of  the  instrument;  that  in  such  a  case  the  facts 

^  <  ■<••  '"''^*-*-  ■  must  be  averred. 

"**^  ti>  «»^-  The  objection  to  the  complaint  was  not  waived  upon  the  trial._ 
r  ^J2^^^'  The  defendant  not  only  took  the  objection  of  the  insufficiency  of 
'^Jjt;^;^^^  the  complaint  before  any  evidence  was  taken,  but  when  the  plain- 

tiff offered  evidence  of  the  fact  that  the  houses  had  been  sold,  he 
objected  to  such  evidence  on  the  ground  that  the  fact  had  not 
been  alleged  in  pleading. 

We  see  no  ground  upon  which  this  case  can  be  distinguished 
from  the  numerous  cases  in  which  it  has  been  decided  that  a 
party  may  upon  the  trial  lawfully  demand  a  dismissal  of  the 
complaint  on  the  ground  that  it  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

The  court  below  at  General  Term  conceded  that  if  the  trial 
judge  had  granted  the  motion  to  dismiss  it  would  have  been 
bound  to  sustain  his  action.  The  necessary  consequence  of  this 
concession  is  that  in  denying  the  motion  the  trial  judge  erred.  It 
was  not  a  question  of  discretion,  but  of  legal  right,  whether  the 
complaint  should  be  dismissed,  and  if  it  would  not  have  been 
error  to  grant  the  motion,  it  was  error  to  deny  it.  It  is  true  that 
an  amendment  of  the  complaint  might  have  been  allowed  in  the 
court  below,  but  no  amendment  was  made  or  asked  for,  and  the 
objection  to  the  complaint  having  been  taken  in  due  season  and 
overruled,  the  correctness  of  the  ruling  must  be  tested  by  the 
complaint  as  it  stood,  and  not  as  it  might  have  been  changed  by 
amendment. 

The  judgment  must  be  reversed  and  a  new  trial  ordered,  costs 

to  abide  the  event.  'SrOv.    <5^Mv- 


Sec.  1.]  BANK  V.  INSURANCE  COMP^VNY.  425 

BANK  V.  GERMAN  AMERICAN  INSURANCE  COMPANY. 

72  Wis.,  535.      [1888.] 

Cassoday,  J.  1.  It  is  claimed  that  the  complaint  fails  to 
show  that  any  premium  was  ever  paid  or  agreed  to  be  paid  for 
the  policy,  and  hence  that  there  is  no  sufficient  consideration 
alleged  to  support  the  contract.  It  is  alleged  "that  on  the  said 
day  the  defendant,  for  a  valuable  consideration,  entered  into  a 
contract  of  insurance  with  the  said  Rossell,  by  the  terms  of  which 
contract,  said  defendant  insured  said  Rossell,  for  the  term  of 
one  year  from  said  date,  against  loss  or  damage  to  said  property 
by  fire,  to  the  amount  of  $1800."  From  this  it  appears  that  tjie 
contract  alleged  was  based  upon  "a  valuable  consideration." 
This  would  seem  to  be  enough  to  support  the  undertaking  to  in- 
sure. It  is  said  that  it  expresses  ' '  a  mere  opinion  of  the  pleader, 
and  is  not  a  statement  of  the  facts. ' '  But  we  think  that  it  does 
allege,  as  a  fact,  that  the  consideration  for  the  contract  was  valu- 
able^ Whether  the  allegation  is  too  general,  or  not  sufficiently 
definite  and  certain,  cannot  be  raised  on  demurrer,  but  only  by 
motion.    Section  2683,  Rev.  St. 

2.  It  is  alleged  "that  on  or  about  Sept.  7,  1887,  the  hotel 
building  above  described  was  totally  destroyed  by  fire."    It  is 
said  that  this  is  insufficient  by  reason  of  the  failure  to  allege 
"that  the  fire  was  the  result  of  accident  or  misfortune,  and  not  / 
through  any  fraud  or  evil  practice  on  the  part  of  the  assured. ' '  J 
The  law  does  not  seem  to  require  the  negation  of  such  conditions  c^-kX^^^  v>.j* 
subsequent.     Redman  v.  Insurance  Co.,  49  Wis.,  431,  4  N.  W.  ..^..,,^  >du>..  o^ 
Rep.,  591.    Besides,  there  is  nothing  in  the  complaint  indicating  ^725:2^   ^>^. 
that  the  contract  of  insurance  contained  any  such  exception,  .-^r^^^-j^..^-^  ^  X^v-k 

warranty  or  condition.     It  simph'  alleges  an  absolute  undertak-  c^jo^ — o^Ar 

ing  to  insure.  Upon  this  demurrer  we  are  not  at  liberty  to  a>-«-*^^  sXT  Vv 
assume  that  the  contract  is  different  than  alleged,  because  such 
contracts  usually  contain  numerous  exceptions,  warranties,  and 
conditions.  The  question  of  variance  is  not  here  involved.  There 
is  certainly  no  good  reason  for  alleging  such  negatives  in  a  com- 
plaint upon  such  absolute  undertaking  to  insure. 

3.  It  is  said  that  there  is  an  absence  of  any  allegation,  that 
any  proofs  of  loss  were  ever  received  by  the  defendant.  The 
allegations  of  the  complaint  in  this. regard  are  that  "it  was  fur- 
ther agreed  by  said  parties,  by  said  contract  of  insurance,  that 


I'^V^ 


426  THE  COMPLAINT.  [Chap.  III. 

the  amount  of  any  loss  or  damage  by  fire  to  the  property  insured 
should  be  paid  by  defendant  sixty  days  after  due  notiee  and 
proof  of  loss  had  been  made  by  said  Rossell,  and  received  by  the 
defendant;  and  plaintitf  further  shows  that  after  the  destruc- 
tion of  said  building  by  fire,  and  more  than  sixty  days  prior  to 
the  commencement  of  this  action,  the  said  Rossell  fully  complied 
with  all  the  conditions  of  said  contract,  and  rendered  to  said 
defendant  a  particular  account  and  proof  of  loss,  as  required  by 
said  contract."  This  would  seem  to  be  sufficient.  In  pleading 
the  performance  of  conditions  precedent  in  a  contract,  it  is  not 
necessary  to  state  the  facts  showing  such  performance.  Put  only 
to  state  generally  that  the  party  duly  performed  all  the  condi- 
tiofis  OP  his  vArt  Section  2674,  Rev.  St.;  Schobacher  v.  In- 
surance Company,  59  Wis.,  89,  17  N.  W.,  969;  Reif  v.  Paige,  55 
Wis.,  502,  13  N.  W.,  473 ;  Boardman  v.  Insurance  Co.,  54  Wis., 
365,  11  N.  W.,  417. 

4.  It  is  said  that  the  complaint  is  insufficient  in  failing  to 
allege  that  the  assignment  by  Rossell  of  his  claim  for  the  loss, 
under  the  contract  of  insurance,  to  the  plaintiff,  the  next  day 
after  the  fire,  was  in  writing,  and  hence  not  within  the  statute 
of  frauds.  Section  2308,  Rev.  St.  True,  this  section  declares,  in 
effect,  that  "every  contract  for  the  sale  of  any  *  *  *  things 
in  action,  for  the  price  of  fifty  dollars  or  more,  shall  be  void,  un- 
less" (1)  it  be  in  writing;  "or  (2)  unless  the  buyer  shall  accept 
and  receive  part  *  *  *  of  such  things  in  action;  or  (3)  un- 
less the  buyer  shall,  at  the  time,  pay  some  part  of  the  purchase 
money."  The  allegations  of  the  complaint  are:  "That  on  or 
about  the  8th  day  of  September,  A.  D.,  1887,  the  said  Frank  Ros- 
sell, for  a  valuable  consideration,  duly  sold,  assigned  and  trans- 
ferred to  this  plaintiff  all  his  claim  and  demand  against  the  said 
insurance  company,  defendant,  accruing  to  him  by  virtue  of  the 
said  contract  on  account  of  said  loss;  and  the  plaintiff  ever 
since  has  been  and  now  is  the  owner  of  the  said  claim  and  de- 
mand." Whether  the  words  "for  a  valuable  consideration," 
here  used,  are  sufficient  to  indicate  payment  of  the  consideration 
*'at  the  time"  of  the  assignment,  within  the  meaning  of  the  last 
clause  of  the  section  quoted,  we  deem  it  unnecessary  here  to  de- 
termine ;  for  we  are  clearly  of  the  opinion  that  the  words,  ' '  duly 
sold,  assigned,  and  transferred  to  this  plaintiff,"  with  what  fol- 
lows  in  effect  allege  that  the  contract  of  insurance,  with  the 
amount_due  thereon,  was  on  the  day  named  delivered  to  and 


Sec.  1.]  BANK  V.   INSURANCE  COMPANY.  427 

acceDted__by  the  plaintifp  as  hnypr^  under  the  second  subdivision 
of  that  section.     A  parol  "contract  for  the  sale     *     *     *     of) 
such  things  in  action, ' '  accompanied  by  a  delivery  to  and  accep-  f 
tance  by  such  buyer,  takes  the  case  out  of  the  operation  of  thej 
(section,  and  is  binding  upon  the  parties.     Anson  v.  Dreher,  35 
Wis.,  615;  Mason  v.  Whitbeck  Co.,  id.,  164;  McKnight  v.  Dunlop, 
5  N.  Y.,  537,  55  Am.  Dec,  370,  and  cases  cited  in  the  notes. 

5.  Besides,  in  pleading  an  assignment  required  to  be  in  writ- 
ing, it  is  sufficient  to  aver  that  such  assignment  was  made,  as  this 
will  be  held,  on  demurrer,  to  imply  a  valid  assignment  under  the 
statutes.  Robbins  v.  Deverill,  20  Wis.,  142.  The  order  of  the 
Circuit  Court  is  affirmed. 

f  JONES  v.  ACCIDENT  ASSOCIATION. 

92  la.,  6-)2.     \1894.] 

KiNNE,  J.  1.  April  8,  1891,  the  defendant  company  issued 
its  policy  of  insurance  upon  the  life  of  one  W.  M.  Jones,  in  the 
sum  of  $5,000,  against  "personal  bodily  injuries,  effected  during 
the  continuance  of  membership  and  this  insurance,  through  ex- 
ternal, violent  and  accidental  means."  Among  the  conditions  of 
the  said  policy  were  the  following:  "The  insurance  under  this 
contract  shall  not  extend  to  or  cover  *  *  *  accidental  in- 
juries or  death  resulting  from  or  caused,  directly  or  indirectly, 
wholly  or  in  part,  by  *  *  *  fighting;  *  *  *  or  vol- 
untary exposure  to  unnecessary  danger;  nor  extend  to  or  cover 
accidental  injuries  or  death  happening  while  the  insured  is  under 
the  influence  of  intoxicating  drinks,  or  in  consequence  thereof; 
or  while  or  in  consequence  of  violating  the  law."  And  also: 
"The  provisions  and  conditions  aforesaid,  and  a  strict  compli- 
ance therewith  during  the  continuance  of  this  contract,  are  con- 
ditions precedent  to  the  issuance  hereof,  and  to  its  validity  and 
enforcement. ' '  The  application  upon  which  the  policy  was  based 
contained  the  following  statement :  "  ( 3 )  My  habits  of  life  are 
correct  and  temperate,  and  I  agree  that  the  certificate  of  mem- 
bership shall  not  cover  any  injury  which  may  happen  to  be 
while  under  the  influence  of  intoxicating  drinks  or  narcotics,  or 
in  consequence  of  having  been  under  the  influence  thereof. ' '  The 
policy  was   made   payable   to   plaintiff.     The   petition   charges 


/Vv>-*"J^^^^**' 


428  THE  COMPLAINT.  [ChAP.  III. 

"that  on  or  about  the  31st  day  of  May,  1892,  at  Council  Bluffs, 
Iowa,  and  whilst  the  said  policy  of  insurance  was  in  full  force 
and  effect,  and  without  any  fault  or  negligence  on  the  part  of 
the  assured,  he,  the  said  W.  M.  Jones,  was  mortally  wounded  by 
a  pistol  ball  fired  by  one  John  Wade,  and  that  he  died  as  a  result 
thereof."  It  is  also  averred  that  proper  proofs  of  death  were 
sent  to  and  received  by  the  company  in  due  time.     *     ♦     * 

3.     At  the  close  of  the  testimony,  defendant  filed  a  motion  in 

arrest  of  judgment,  claiming  that  the  petition  did  not  state  a 

,  cause  of  action,  in  that  it  failed  to  aver  that  none  of  the  condi- 

tions  upon  which  the  policy  was  issued  were  ' '  breached ' '  by  the 


assured.     This  motion  was  overruled  and  an  exception  taken. 
Defendant's  contention  is  that  it  was  only  to  be  liable  in  the  case 
of  death  of  the  assured  in  the  absence  of  certain  conditions  stated 
•in  the  policy,  and  that  it  was  incumbent  upon  the  plaintiff  to 
negative  these  exceptions  in  his  petition.     The  question  then  is, 
must  these  conditions  or  exceptions,  the  existence  of  which  may 
relieve  the  defendant  from  liability,  be  pleaded  by  plaintiff,  or 
are  they  so  far  matters  of  defense  as  that  the  burden  is  upon  the 
defendant  to  plead  and  prove  them  ?    In  our  judgment,  they  were. 
::.  (f?  ex.  ^>8>^     not  required  to  be  pleaded  or  proven  by  plaintiff.     They  were 
>^  ^ysk-oJoA^  purely  matters  to  be  relied  upon  in  defense  of  an  action  on  the 
♦it  vjoWfeUv^.  j^olicy.     Defendant  insured  Jones,  "subject  to  the  by-laws  and 
^<U»,cAvv     all  the  conditions  indorsed  hereon  (on  the  policy)  against  per- 
X  :^:^^rVv       sonal  bodily  injuries  effected  during  the  continuance  of  member- 
jj^  vA>J*'^-aA^   ship  and  this  insurance,  through  external,  violent,  and  accidental 
A)A.^v>-«>L  .  means. ' '    On  this  policy  it  is  said :    * '  The  conditions  under  which 

•this  certificate  was  issued  and  accepted  by  the  assured  are  as 
follows:  Then  follow  the  several  provisions  that  the  contract 
shall  not  extend  to  or  cover  certain  cases,  theretofore  mentioned. 
At  the  end  of  these  conditions  it  is  said  "The  provisions  and 
Conditions  aforesaid,  and  a  strict  compliance  therewith  during 
the  continuance  of  this  contract,  are  conditions  precedent  to  the 
issuance  hereof,  and  its  validity  and  enforcement."  It  ought 
to  be  said  that  the  fact  that  the  contract  savs  that  certain  pro- 
visions of  it  shall  be  conditions  precedent  does  not,  of  necessity, 
make  them  such.  We  cannot  accede  to  the  doctrine  that  the  pro-  -^ 
visions  under  consideration  are  conditions  precedent.  A  condi-ji0^ 
jiion  precedent,  as  applied  to  the  contract,  is  a  condition  which 
must  be  performed  before  the  agreement  of  the  parties  becomes 
a  valid  contract.    Redman  v.  Insurance  Company,  4  N.  W.,  595, 


Sec.  1.]  JONES  v.  accident  association.  429 

49  Wis.,  431.  The  conditions  in  this  case  were  that  the  contract 
should  not  cover  accidental  death  resulting  from  or  caused  by  ^^^^"^^^  "^^^^^ 
fighing,  voluntary  exposure  to  unnecessary  danger,  intoxication,  ,.^^.^^^_^j^^;^^^  ;^^  o^^ 
or  to  death  in  consequence  thereof,  and  in  consequence  of  vio-  ,_,^,^_^  <Ol!i^^Ju- 
lating  the  law.  Not  one  of  these  conditions  were  to  happen  prior  vJu^,  ■^.s^.^o^  j^ 
to  the  time  the  contract  between  the  assured  and  the  company  Uo  dk>--<liA-rwv. 
should  become  binding.  The  contract  became  binding  upon  the  Vv^v^-ou  cjw.Vji>v 
"Company  as  soon  as  it  accepted  the  assured  as  a  member,  and  ^^^.^v^^tl^ 
issued  to  him  its  p()licy.  The  situation  then  is  this :  That  there  ^^Z'^^y^^^^ 
was  a  valid  contract  of  insurance  when  the  policy  issued,  but  T 

it  might  thereafter,  upon  the  happening  of  some  of  these  condi-  V^-^.^:^  <s>^ V^J 
tions,  cease  to  be  enforceable.     If,  then,  these  provisions  of  the  oA  cy:iyv^AAJ  ,  a 
policy  can  be  properly  called  conditions,  they  are  in  no  sense  -xri>uAi^  V^d^ 
conditions  precedent.     Under  them  the  defendant  might  be  re-  ..^^^^^'TX^ 
lieved  from  liability.    They  were  each  and  all  matters  of  defense,  ^  «:>s^.^.^A^ 
available  to  the  defendant ;  but,  not  constituting  a  part  of  the  ^^^C^^^^^^^^ 
plaintiff's  case,  the  burden  did  not  rest  upon  him  to  either  P^ead^^j^^^j^"^^^^^^^ 
or  prove  them  in  the  first  instance.    Redman  v.  Insurance  Co.,   ^J^^a,j^^^;.^^^ 
supra;  Coburn  v.  Insurance  Co.,  145  Mass.,  226,13  N.  E.,  604;    ^''"^^'^^^'^-"'^ ^ 
Freeman  v.  Insurance  Co.,  144  Mass.,  572,  12  N.  E.,  372;  In- 
surance Co.  V.  Nichols  (Tex.  Civ.  App.),  24,  S.  W.,  910 ;  Badenfeld 
V.  Association  (Mass.),  27  N.  E.,  770;  Insurance  Co.  v.  Ewing,  92 
U.  S.,  377;  Cronkhite  v.  Insurance  Co.  (Wis.),  43  N.  W.,  731; 
Newman  v.  Association,  76  Iowa,  63,  40  N.  W.,  87 ;  Sutherland 
V.  Insurance  Co.  (Iowa),  54  N.  W.,  453.    The  motion  in  arrest 
was  properly  overruled.     *     *     * 

(Judgment  reversed  on  other  grounds.)  r^  - 


STROEBE  v.  FEHL. 
22  Wis.,  337.      [1867.] 

Action  by  the  vendee  of  growing  timber  to  restrain  interfer- 
ence by  the  grantee  of  the  land.  The  facts  sufficiently  appear 
in  the  opinion. 

Dixon,  C.  J.  The  title  of  the  husband,  the  plaintiff's  vendor, 
is  not  accurately  pleaded,  and,  by  the  strict  rules  of  the  com- 
mon law,  the  complaint  in  this  particular  would  doubtless  be  bad. 
It  may  be  so  now ;  but  the  objection  should  be  taken  by  demurrer, 
or  motion  to  make  the  complaint  more  definite  and  certain.    The 


430 


THE  COMPLAINT. 


[CllAI'.  III. 


averment  is,  "that  from  the  21st  day  of  Au^nist,  A.  D.,  1845,  till 
the  22cl  day  of  February,  A.  D.,  186G,  one  Nelson  Burst  was 
seized,  in  right  of  his  wife,  Eliza  Burst,  of  the  east  half,  etc." 
At  common  law  the  husband  acquires  by  the  marriage  a  free 
hold  estate  in  the  lands  of  the  wife,  but  not  the  fee,  which  still 
remains  in  the  wife.  Both  together  have  the  whole  estate,  and 
therefore  in  law  they  are  considered  as  seized  in  fee,  and  must  so 
state  their  title  in  pleading.  The  husband  cannot  aver,  in  plead- 
ing, that  he  alone  is  seized  in  fee  in  right  of  his  wife,  because  the 
fee  is  in  the  wife,  and  of  this  he  is  seized  jointly  with  her.  .Mel- 
vin  V.  Proprietors  of  Locks,  etc.,  16  Pick.,  165.  But  though  this 
is  so,  we  think  the  defect  is  not  one  which  can  be  taken  advantage 
P^^^^^^^lx^^  of  by  objecting  to  evidence  at  trial.    The  intention  of  the  pleader 


^„-, --.,  to  aver  a  seizin  of  the  husband  by  virtue  of  the  marriage,  which 

u.  oWJCa^  -jj  jg^Y  constitutes  a  joint  seizin  of  the  husband  and  wife,  and 
'^^-^-'^^^^T  should  be  so  pleaded,  is  very  plain ;  and,  as  the  opposite  party 
^^-^^>^  '^-^  cannot  be  taken  by  surprise,  the  court,  instead  of  rejecting  the 
"^  ^^^.  evidence^  should,  under  the  liberal  powers  of  amendment  now 
[^U^^  conferred  by  statute,  rather  order  an  immediate  amendment  of 
5  dL  yy^^^JTT^^  the  complaint,  or  receive  the  evidence  and  allow  the  complaint  to 

-  ^\^^^   be  afterwards  amended  so  as  to  conform  to  it. 

:^f\iv'^>~^  The  next  objection  is,  that  the  complaint  is  defective  in  not 

-  ^jA^~>^^  '\  averring  thatXelson  Burst  and  his  wife  are  still  alive,  or,  if 
,0^  <w^  v>^A;j.j^g  ^,-^^Q  l3g  deadTthat  the  husband  survives  and  has  become 
^-^  ii/wn>^  tenant  by  the  curtesy.  The  reason  of  this  objection  is,  that  as 
^^i^X^'^2^^  ^^e  estate  of  the  husband  in  the  land  of  the  wife  is  an  estate  for 
,.,^-U  M*J^- their  joint  lives  only,  unless  the  husband  survives  the  wife  under 

such  circumstances  as  to  become  a  tenant  by  curtesy,  and  then 
only  for  his  life,  and  as  all  interest  in  or  title  to  the  estate 
acquired  under  the  husband  ceases  absolutely  upon  the  determi- 
nation of  his  estate,  the  complaint  shows  no  cause  of  action,  except 
it  appears  that  the  husband  still  lives  and  is  tenant  by  the 

>.  curtesy. 
A        There  are  two  answer  to  this  objection,  either  of  which  is 
sufficient.    The  first  is,  that,  it  appearing  that  the  husband  and 
L^  wife  were  alive  on  the  22d  day  of  Februarv.  1866,  the  presump- 
\  tion  is  that  they  are  still  living,  until  the  contrarv  is  shown  by  the 
party  who  asserts  the  death.    1  Greenleaf  on  Ev.,  sec.  41.    When 
the  law  presumes  a  fact,  it  need  not  be  stated  in  pleading.     1 
VChitty's  PL,  231. 

The  other  answer  is,  that  the  determination  of  the  husbandj 


^»<_-*JOw^<Sv 


Sec.  1.]  STROEBE   V.    FEHL.  431 

estate,  by  the  death  either  of  himself  or  his  ^vife,  is  a  matter  in  ^^^^ 
cK^TeaiaiK-e  of  the  action,  and  need  not  be  pleaded.    It  is  a  coiT^ 
clition  subsequent  to  the  estate  of  the  husband,  and  in  its  nature 
a  matter  of  defense,  which  ought  to  be  shown  in  pleading  by  the 
opposite  party.     1  Chitty's  PI.,  33.     *     *     *  ''^^^    ^     ^^^ 

By  the  Court.    Judgment  reversed  and  new  trial  awarded.        ^^-'^^^^^-'orr,.  >>^»j* 


v^ 


(T-;^X.3^s.Ajs.  - 


MOXLEY'S  ADMINISTRATORS  v.  MOXLEY. 

2  Met.  {Kij.),  309.     [1859.] 

Judge  DuvALL  delivered  the  opinion  of  the  Court : 

The  only  question  we  shall  deem  it  important  to  consider,  as 
the  case  is  now  presented,  is  that  which  arises  on  the  demurrer 
to  the  amended  petition. 

In  that  amendment  it  is  alleged,  in  substance,  that  on  the 

day  of  ,  1851,  the  testator,  in  his  lifetime,  proposed  to 

plaintiff  that  if  he,  the  plaintiff,  would  quit  his  business  and 
trade  of  carpenter,  and  undertaker  of  carpenter's  work,  and 
come  and  live  with  the  testator  on  his  farm,  that  he  would  do  as 
well  or  better  for  the  plaintiff  than  the  plaintiff  was  doing  or 
could,  by  his  said  trade  of  carpenter. 

That  the  plaintiff,  confiding  in  the  promises  so  made,  did,  on 

the day  of ,  1851,  quit  his  said  trade,  and  go  to  the 

farm  of  the  testator  in  his  lifetime,  and  live  with  and  aid  and 

assist  .said  testator  in  his  business,  from  the day  of , 

1851,  until  the  death  of  the  testator  in  1855. 

And  the  plaintiff  avers  that  his  business  and  trade  of  carpen- 
ter, etc.,  was  worth  $1,200  per  year,  of  which  the  testator  and 
his  representatives  had  notice.  "Yet  said  testator  in  his  life- 
time, nor  said  administrators  with  the  will  annexed,  since  the 
death  of  said  testator,  hath  or  have  paid  plaintiff  any  part  of  the 
said  sum  of  money,"  although  often  requested,  etc. 

To  the  suflfieiency  of  this  pleading  two  objections  are  urged  by 
the  appellants: 

1.  That  it  sets  out  no  valid  contract  between  the  parties,  upon 
which  the  plaintiff  was  entitled  to  recover;  and, 

2.  That  it  fails  to  assign  a  sufficient  breach  of  the  contract  as 
alleged. 

1.     A  proposition  or  offer  imposes  no  obligation  on  the  party 


432  THE  COMPLAINT.  [ClIAI*.  111. 

making  it,  unless  it  be  accepted  by  the  party  to  whom  it  is  made. 
But  this  is  not  all.  The  acceptance  must  be  within  a  reasonable 
time.  And  the  question  what  is  or  is  not  a  reasonable  time,  must 
be  determined  by  the  nature  of  the  case.  ' '  It  may  be  said, ' '  says 
Parsons,  ''that  whether  the  offer  be  made  for  a  time  certain  or 
not,  the  intention  or  understanding  of  the  parties  is  to  govern. 
If  the  proposer  fixes  a  time,  he  expresses  his  intention,  and  the 
other  party  knows  precisely  what  it  is.  If  no  definite  time  is 
stated,  then  the  inquiry  as  to  a  reasonable  time  resolves  itself 
into  an  inquiry  as  to  what  time  it  is  rational  to  suppase  that  the 
parties  contemplated ;  and  the  law  will  decide  this  to  be  that  time 
which,  as  rational  men,  they  ought  to  have  understood  each  other 
to  have  in  mind." 

Tested  by  these  principles,  it  is  clear  that  the  facts  alleged  in 
the  amended  petition  do  not,  of  themselves,  import  an  agreement, 
or  authorize  the  legal  deduction  that  any  contract  of  the  char- 
acter here  sought  to  be  enforced,  existed  between  the  parties  at  the 
time  of  the  death  of  the  testator.  The  plaintiff  does  not  allege,  in 
terms  or  in  substance,  that  he  accepted  the  proposition  v.ithin  a 
reasonable  time  after  it  was  made.  Nor  are  the  dates  so  stated 
^_^^jjL»v  cvaAj?:  as  to  enable  the  court  to  infer,  by  the  most  liberal  intendment, 
,s.^-\V^^es5C"o>^}ja^  ^]^g  acceptance  was  within  a  reasonable  time.    He  avers  that 

^"'""^^^^^       the  offer  was  made  on  the day  of ,  1851,  and  that 

^  ^a/v^.^ej~-    ^^'  confiding  in  the  promises  of  the  testator,  did,  on  the day 

oJl3lx-ul^^     of ,  1851,  quit  his  trade,  etc.    It  is  obvious  that,  in  cases 

a^^-lMc  of  this  kind,  time  becomes  an  essential  element  to  be  considered  in 
'^•'^"^"*-^  determining  the  legal  effect  of  the  alleged  acceptance.  This  prop- 
'■'^^'^^'-^-^  \  qsition,  so  far  as  any  thing  to  the  contrary  appears  in  the  plead- 
^^*~^  ing,  may  have  been  made  in  the  beginning  of  the  year  1851.  and 

^   .  the  acceptance  of  it  may  have  been  made  at  the  end  of  that  vear 

■-AAyV  ^^^>ssv..  — -rr ■    •   .^  , — — 7^ : r— ; : — ■ •^ 

_^^^^^^^_^v_  11  so,  could  it  be  said,  m  view  oi  the  circumstances  of  the  parties, 
^^^  or  of  the  nature  and  subject-matter  of  the  negotiation,  that  the 
acceptance  was  within  a  reasonable  time,  or,  in  the  language  of 
the  authority  quoted,  is  it  rational  to  suppose  that  the  parties, 
or  either  of  them,  could  have  contemplated  such  a  lapse  of  time 
between  the  making  of  such  offer  on  the  one  hand,  and  its 
acceptance  on  the  other  ?  We  think  not.  And  our  conclusion  is, 
that  upon  this  ground  the  demurrer  to  the  amended  petition 
should  have  been  sustained.  There  can  be  no  doubt  that  the 
plaintiff  might  have  shown,  by  suitable  averment,  that  the  testa- 
tor had,  by  his  acts,  waived  the  effect  of  the  plaintiff's  failure  to 


^-o  \iO  C-~ 


Sec.  1.] 


moxley's  admrs-  v.  moxley. 


433 


accept  the  proposition  within  a  reasonable  time.  But  the  amended 
petition  contains  no  averment  that  can  be  so  construed. 

2.     The  second  objection  is  still  more  manifestly  fatal. 

The  breach  of  a  contract  is  an  essential  part  of  the  cause  of 
action,  and  the  assigrnment  of  the  breach  must,  in  all  cases,  be 
governed  by  the  nature  of  the  stipulation. 

The  breach  should  be  assigned  in  the  words  of  the  contr^act^ 
either  negatively  or  ariirmativeiy,  or  in  words  which  are  co-exten- 
swF  with  the  import  andc/fcct  oUt.     ((Jhitty's  Pleadings,  :i'6'Z.) 

if  the  breach  vary  trom  the  sense  and  substance  of  the  con- 


tract,  and  be  either  more  limit cd  or  lai-gei'  than  the  covenant,  it 
will  be  insufficient.     (Ibid.,  334.) 

In  the  case  of  Ilord  v.  Trimble  (3  Marsh.,  532),  this  court  laid 
down  the  rule  that,  to  make  the  breach  in  covenant  good,  it  is  not 
necessary  that  it  should  be  assigned  in  the  words  of  the  covenant. 
"But  the  expressions  must  be  of  the  like  import  or  rather,  such 
words  miLst  be  used  as  show  that  they  cannot  be  true  unless  the 
covenant  is  broken."  Other  and  later  cases  to  the  same  effect 
might  be  quoted,  if  it  were  necessary. 

But  the  rules  of  pleading  which  require  that  the  contract  itself 
shall  be  substantially  set  out,  as  well  as  the  breach  of  which  the 
plaintiff  complains,  are  fundamental,  and  must  be  too  well  under- 
stood to  require  either  illustration  or  authority,  at  this  day.  And 
it  is  a  great  mistake  to  suppose  that  those  rules  have  been  either 
abrogated  or  essentially  modified  by  any  of  the  provisions  of  the 
Civil  Code. 

Is  it  not  apparent,  then,  that  the  breach  of  the  contract  at- 
tempted to  be  assigned  in  the  pleading  under  consideration,  is 
altogether  insufficient  ?  The  substance  of  the  alleged  agreement 
is,  that  the  plaintiff  should  quit  his  business  and  trade  of  carpen 
ter,  and  should  come  and  live  with  the  testator  on  his  farm,  and 
the  latter  would  do  as  well  or  better  for  the  plaintiff  than  the 
plaintiff  was  doing  or  could  do  by  his  said  trade ;  and  the  breach 
assigned  is,  that  the  testator  and  his  representatives  had  failed 
to  pay  to  the  plaintiff  any  part  of  the  sum  of  $1,200  per  year^ 
that  being  the  annual  value  of  the  plaintiff's  trade  and  business. 
Now  it  can  hardly  be  argued  that  the  words  of  this  breach  are 
co-extensive  with  the  import  and  effect  of  the  contract,  the  only 
stipulation  of  which,  on  the  part  of  the  testator,  was  not  to  pay 
to  the  plaintiff  in  money  a  sum  equal  to  what  his  trade  was  worth 
per  year,  but  to  do  as  well  or  better  for  the  plaintiff  than  he  was 
28 


*Ar-J*As>-cXv_  - 


434  THE  COMPLAINT.  [ClI.VP.  III. 

doing  or  could  do  by  his  trade  and  business.  Could  tliis  under- 
taking of  the  testator,  to  do  as  well  or  better  for  the  plaintiff 
than  he  was  doing  or  could  do  at  his  trade,  be  discharged  in  no 
other  way  than  by  payment  in  money  of  what  the  trade  was 
worth  ? 

Thejjreach,  then,  as  assigned,  varies  from  the  sense  and  sub- 
stance of  the  contract.  It  is  more  limited  than  the  contract  in  its 
import  and  effect^  The  words  of  the  breach  may  be  true,  and  yet 
the  word  of  the  testator  may  stand  unbroken.  He  may  have  fail- 
ed to  pay  the  plaintiff  the  sum  of  money  mentioned,  "or  any 
part  thereof,"  and  yet,  through  an  almost  inconceivable  number 
of  other  channels,  he  may  have  bestowed  benefits  upon  the  plain- 
tiff almost  inconceivable  in  number  and  value,  and  may  thus 
have  redeemed  his  promise  to  do  better  for  the  plaintiff  than  the 
latter  was  doing  or  could  do  by  his  trade. 

It  results  that  the  court  erred  in  overruling  the  demurrer  to 
the  amended  petition. 

The  judgment  is  therefore  reversed,  and  the  cause  remanded, 
with  directions  to  sustain  the  demurrer,  giving  to  the  plaintiff' 
leave  to  further  amend  his  petition,  if  he  desires  to  do  so,  and  for 
a  new  trial  and  further  proceeding  not  inconsistent  with  this 

LENT  v.  N.  Y.  &  M.  R.  R.  CO. 

130  N.  Y.,  504.     [1892.] 

'Action  to  recover  the  amount  awarded  to  plaintiff  in  condem- 
nation proceedings.  The  complaint  alleges  the  various  proceed- 
ings resulting  in  the  award,  but  did  not  allege  non-payment.* 

Brown,  J.  *  *  *  It  remains  to  consider  the  question 
whether,  giving  to  the  word  "entered"  the  interpretation  that 
we  have,  the  complaint  states  a  cause  of  action.  The  effect  of 
the  recording  of  the  order  was  to  create  a  debt  against  the 
defendant,  and  in  that  respect  its  liability  is  analogous  to  a 
liability  arising  upon  the  maturity  of  a  contract  for  the  payment 
of  money,  and  the  question  is  presented  whether  an  allegation 
of  non-payment  is  essential  and  material  to  the  cause  of  action. 
The  code  (section  481),  provides  that  the  complaint  must  con- 


*The  statement  has  been  abridged,  and  a  part  of  the  opinion  omit- 
ted. 


^EC.  1.]  LENT  V.  N.  T.  &  M.  R.  R.  CO.  435 

tain  a  plain  and  concise  statement  of  the  facts  constituting  the 
cause  of  action,  and  the  general  rule  deduced  therefrom  Is  that 
whatever  facts  are  essential  to  be  proven  to  entitle  the  plaintiff 
to  recover  upon  the  trial  must  be  alleged  in  the  complaint.     It 
does  not  admit  of  controversy  that,  upon  an  ordinary  contract 
for  the  payment  of  money,  non-payment  is  a  fact  which  consti- 
tutes the  breach  of  the  contract,  and  is  the  essence  of  the  cause 
of  action,  and,  being  such,  within  the  rule  of  the  code  it  should 
be  alleged  in  the  complaint.    It  is  said,  however,  that  paj^ment  is 
always  an  affirmative  defense,  which  must  be  pleaded  to  be  avail- 
able, and  hence  non-payment  need  not  be  alleged,  as  it  is  not  a 
fact  put  in  issue  by  a  general  denial.     Salisbury  v.  Stinson,  10 
Hun,  242.     The  rule  that  payment  is  an  affirmative  defense  is 
not  one  embodied  in  the  code,  but  had  its  origin  under  the  com- 
mon law  practice  in  the  plea  of  non-assumpsit ;  and  the  reason 
for  it  was  that  in  assumpsit  the  allegation  in  the  declaration  and 
^the  traverse  in  the  plea  were  in  the  pa.st  tense,  and,  under  the 
rule  which  excluded  all  proof  not  strictly  within  the  issue,  no 
evidence  was  acbnissible,  except  such  as  had  a  tendency  to  show 
that  the  defendant  never  had  made  the  promise.    It  was  never 
applied  in  the  action  of  debt,*  the  allegation  in  that  form  of  action 
being  in  the  present  tense,  and,  under  the  plea  of  nil  debet,  any 
fact  tending  to  show  that  there  was  no  indebtedness  on  the  part 
of  the  defendant  was  admissible.     The  history  of  the  rule  is  set 
forth  in  Judge  Seldon's  opinion  in  McKyring  v.  Bull,  16  N.  Y., 
297,  and  need  not  be  referred  to  here.    Following  the  rule  thus 
established  under  the  former  practice,  the  courts  have  uniformly 
held,   since   the   adoption   of  the  code,  that  payment  must   be 
pleaded,  and  cannot  be  proven  under  the  ^enpr^l  \<^f^\]^     While 
the  effect  of  these  decisions  is  to  modify  somewhat  the  rule  em- 
bodied in  section  500  of  the  code,  their  tendency  is  to  simplify 
pleading,  as  under  their  application  the  plaintiff  is  informed  of 
the  precise  defense  intended  to  be  made,  and  thus  unnecessary 
preparation  is  obviated,  and  surprise  on  the  trial  avoided. 

But  there  is  no  need  to  further  extend  the  rule,  and  hold  that.^"^^^^^"  '^^ 
because  payment  as  a  defense  must  be  pleaded,  the  breach  of  the  \  ^  A-x>c^ 
agreement  need  not  be  alleged  in  the  complaint.  That  would  have  ''^^^^-'-»^«^  - 
the  contrary  effect,  and  lead  to  embarrassments  that  are  avoided  ^^^^^^\^ 
when  the  plain  provisions  of  the  code  are  followed.  No  authority  ^^^  '^'^^ 
exists,  so  far  as  I  am  able  to  find,  except  the  case  of  Salisbury  v. 

♦But  see  Goodchild  v.  Pledge,  1  M.  &  W.  363. 


436  THE  COMPLAINT.  [ClIAP.  III. 

Stinson,  holding  that  a  breach  of  the  contract  need  not  be 
pleaded,  but  all  text  writers  and  reported  cases  hold  to  the  con- 
trary. 1  Chitty  PL  &  Pr.,  pp.  325-359 ;  Cora.  Dig.  tit.  ** Pleader," 
C,  44;  2  Wait,  Law  &  Pr.,  p.  318;  1  Wait  Act.  &  Def.,  pp.  394, 
395,  and  cases  cited;  Witherhead  v.  Allen,  4  Abb.  Dec,  628; 
Tracy  v.  Tracy  (Sup.),  12  N.  Y.  Supp.  665;  Van  Gieson  v.  Van 
Gieson,  10  N.  Y.,  316;  Krower  v.  Reynolds,  99  N.  Y.,  245,  1  N. 
E.,  775.  Witherhead  v.  Allen,  arose  upon  a  demurrer  to  a  com- 
plaint. The  opinion  states  the  rule  as  follows:  "When  the  action 
is  founded  upon  the  contract  obligation  or  duty  of  the  defendant,  the 
very  gist  and  essence  of  the  cause  of  actiop  Ls  the  breach  thereof 
by  the  defendant,  and,unless  a  breach  is  alleged,  no  cause  of  action 
is  shown."  In  Van  Gieson  v.  Gieson,  10  N.  Y.,  316,  it  is  said: 
"The  material  allegations  of  the  complaint  in  this  case  are  the 
making  by  the  defendants  of  the  promissory  note,  the  transfer  of 
it  to  the  plaintiff,  and  the  non-payment  by  the  defendants.  Each 
of  them  is  material,  for  without  the  concurrence  of  all  of  them 
the  complaint  would  not  show  a  cause  of  action."  To  the  same 
effect  is  Keteltas  v.  Myers,  19  N.  Y.,  231.  See,  also,  Code,  § 
534,  1213,  subd.,  2.  In  Krower  v.  Reynolds  it  was  held,  in  an 
action  on  a  covenant  to  pay  a  mortgage,  that  it  was  necessary 
to  allege  that  the  mortgage  had  not  been  paid,  or  that  the  defend- 
ant had  failed  to  perform  his  covenant,  and  without  such  allega- 
tion the  complaint  was  demurrable.  And  in  numerous  cases, 
which  need  not  be  cited,  but  of  which  Allen  v.  Patterson,  7  N.  Y., 
476,  is  a  type,  the  rule  is  recognized  by  implication,  but  the  com- 
plaints were  held  good  because  of  an  allegation  of  indebtedness 
by  the  defendant  to  the  plaintiff:  This  rule  is  further  recognized 
/  dn  section  534  of  the  code,  which  provides  a  simple  form  of 
I  pleading  on  an  instrument  for  the  payment  of  money  only,  but 
J  requires  the  plaintiff  to  state  the  sum  which  he  claims  to  be  due  to 
\  him  thereon.  Again,  the  complaint,  when  verified,  and  there  is 
\no  answer,  stands  as  proof  of  the  plaintiff's  claim,  and  the  clerk 
lis  authorized  to  enter  judgment  thereon. 

1  But  if  the  plaintiff  is  not  required  to  allege  a  breach  of  the 
contract  or  state  the  amount  due,  as  his  verification  would  cover 
only  the  facts  alleged,  the  clerk,  under  sections  420,  1212,  1213, 
of  the  code,  would  be  authorized  to  enter  judgment  for  the  whole 
amount  called  for  by  the  contract,  and  this  without  proof  of  the 
amount  due  thereon.  This  would  be  contrary  to  the  whole  spirit 
of  the  code,  and  would  require  the  clerk  to  presume  a  fact  neither 


Sec.  1.]  LENT  V.  N.  Y.  &  M.  R.  R.  CO.  437. 

alleged  nor  proved,  viz.,  that  no  payments  had  been  made.  These 
views  show  how  essential  to  the  practice  it  is  that  the  plaintiff 
sho uld  allege  the  breach  of  the  contract  of  which  he  complains. 
That  breach  is  alwa.ys  a  fact,  and  it  is  of  the  very  essence  of  the 
cau.sc  of  action!  i'he  complaini  should  sliow  facts  which,  if  veri- 
fied  and  not  denied,  prove  to  the  clerk  that  the  plaintiff  is 
entitled  to  the  judgment  which  he  demands.  It  cannot  be  said>Yv*»v- 1?-^^ 
that  where  the  breach  consists  in  non-payment  of  an  agreed  sum,  \  Ca  o-^  '«*^ 
fit  is  not  an  issuable  fact,  because  payment  f^annot  be  proven  1  \»r»-*^  >  ^^ 
under  general  denial.  The  most  that  can  be  said  is  that  that  'v^  <Xij-t>:r^ 
form  of  denial  does  not  put  that  fact  in  issue,  and  to  that  extent  **'''-**^  °^^^ 
the  rule  that  payment  must  be  pleaded  must  be  deemed  to  modify 
Ithe  rule  of  pleading  under  the  code  in  referenc  to  a  general 
denial.  But  no  reason  is  apparent  how  it  can  justify  the  omission 
from  the  complaint  of  a  fact  material  to  the  plaintiff' 's  cause  of 
action,  and  essential  to  be  proved  to  entitle  the  plaintiff  to  a 
judgment.  Such  facts,  under  the  code,  must  be  pleaded.  No 
presumption  can  be  indulged  in  that  a  defendant  has  failed  in 
his  duty  or  omitted  to  perform  his  contract  obligation.  There 
was  no  allegation  in  the  complaint  in  this  action  that  the  defend- 
ant had  failed  or  omitted  to  pay  the  award,  and  no  allegation  of 
indebtedness,  and  without  such  no  cause  of  action  was  stated.  On 
this  ground  we  are  of  the  opinion  that  the  demurrer  was  well 
taken.  Other  objections  to  the  complaint  were  discussed  upon 
the  argument,  but  none  of  them  are  considered  well  taken.  The 
judgment  must  be  reversed,  and  the  demurrer  sustained,  with 
costs,  with  leave  to  the  plaintiff's  to  amend  the  complaint  within 
thirty  days  on  payment  of  costs.  All  concur,  except  Follett,  C. 
'J.,  and  Vann,  J.,  dissenting,  and  Potter,  J.,  not  voting. 


V  ^-     ^ 


JONES  v.  EWING. 

23  Minn.,  157.     [1875.] 

Defendant  mortgaged  certain  real  estate  to  plaintiff.  The 
mortgage  contained  the  usual  power  of  sale,  and,  upon  default 
in  pajTnent,  was  foreclosed  by  advertisement,  the  plaintiff  becom- 
ing the  purchaser.  After  the  expiration  of  the  year  of  redemp- 
tion plaintiff  brought  this  action  for  unlawful  detainer,  under 
Gen.  St.  ch.,  84,  to  recover  possession  of  the  premises  so  mort- 


438  THE  COMPLAINT.  [ClIAl'.  III. 

gaged  and  sold  to  him.  The  justice  rendered  judgment  for 
plaintiff,  from  which  defendant  appealed.  The  appeal  was  heard 
in  the  district  court  for  Hennepin  county,  Vanderburgh,  J.,  pre- 
siding, and  judgment  rendered  for  defendant  on  the  pleadings, 
from  which  the  plaintiff  appeals.  The  objection  to  the  complaint 
is  that  in  setting  out  plaintiff' 's  title  it  fails  to  state  that  no 
action  had  been  brought,  before  the  foreclosure,  to  recover  the 
mortgage  debt,  etc, 

Cornell,  J.  To  entitle  any  party  to  give  notice  of  the  fore- 
closure of  a  real  estate  mortgage  by  advertisement,  and  to  make 
such  foreclosure,  the  statute  declares  that  "it  is  requisite"  among 
other  things,  "that  no  action  or  proceeding  has  been  instituted 
at  law  to  recover  the  debt  then  remaining  secured  by  such  mort- 
gage, or  any  part  thereof ;  or,  if  the  action  or  proceeding  has  been 
instituted,  that  the  same  has  been  discontinued,  or  that  an  execu- 
tion upon  the  judgment  rendered  therein  has  been  returned  un- 
satisfied, in  whole  or  in  part."   Gen.  St.  ch.,  81,  §  2. 

In  setting  up  a  title  acquired  under  such  foreclosure,  is  it  nec- 
essary, in  addition  to  the  other  essential  facts  showinir  a  right  to 
give  the  notice  and  make  the  foreclosure,  that  the  pleading  con- 
tain  an  averment  that  no  action  or  proceeding  has  been  instituted 
at  law  to  recover  the  debt  secured  by  the  mortgage,  or  any  part 
thereof:  or,  if  instituted,  that  the  same  has  been  discontinued;? 
or,  that  an  execution,  etc.,  has  been  returned  unsatisfied,  in  whole 
or  in  part?  This  is  a  question  of  pleading,  and  must  be  deter- 
mined by  the  rules  of  pleading.  If  a  complaint  contain  a  distinct 
statement  of  all  the  facts  which,  upon  a  general  denial,  the  plain- 
tiff will  be  bound  to  prove,  in  the  first  instance,  to  protect  him- 
self from  a  nonsuit,  and  to  show  himself  entitled  to  a  judgment, 
it  is  good  pleading.  It  is  sufficient  if  it  shows  a  prima  facie  right 
in  the  plaintiff  to  recover,  and  it  is  not  necessary  that  it  should 
negative  a  possible  defense  (Moak's  Van  Santvoord,  163; 
Doughty  V.  Devlin,  1  E.  D.  Smith,  625,  631),  or  state  matter 
w^hich  would  come  more  properly  from  the  other  side.  Stephen 
PL,  350.  These  are  general  and  elementary  rules  of  pleading, 
applicable  as  well  under  the  code  as  under  the  former  practice. 
The  only  difficulty  arises  in  their  application  to  particular  cases. 

The  right  of  foreclosure  by  advertisement  rests  upon^^he  power 
of  sale  contained  in  the  mortgage,  the  proper  record  thereof,  and 
of  its  assignments,  if  any,  and  the  further  fact  that  such  power 
has  become  operative  by  reason  of  some  default.    An  action  or 

OV'v^L.^  0»  -yvA-*-'^  «iU-X»NjL    Jb-^^^^zX-"    V- rv^0^^s*-^^-T>.    o  >i.«»/^--v^x 'Hv-o..-^ 


sec.1.]  JONES  V.  EwiNG.  439  1^;;;;;;^;^;^ 

proceeding  instituted  at  law  to  recover  the  mortgage  debt  has  >^     ^^^^ 
the  effect  of  suspending,  for  the  time,  the  exercise  of  the  right ;    t^W-  <^-V« 
hut  itsoion-existence  can  hardl^^  ^-"^  saiH  tn  p:iYP  nr  crpnte  \h(^     <s^ x)^^J^^,OL/ 
rio-ht.     The  mortgagee  or  his  assignee,  in  whom,  at  the  time,    Vji\.:>-'— ->  ^ 
Is  vested  the  power  of  sale,  is  the  proper  party,  and  the  only  one    >(ps>_a»^.'^  j 
legally  competent,  to  exercise  the  right  by  an  execution  of  the  "^^aX,^. 
power ;  and  when  nothing  is  sugo-ested  upon  the  record  going  to 
show  its  suspension  by  reason  of  a  suit  commenced^  or  the  exis- 
tence of  some  disability  preventing  the  partv  from  acting,  it  must 
be^Igglffl^d  that  he  acted  rightfully.    If  any  such  fact  is  claimed 
to  exist,  it  is  a  matter  more  properly  coming  from  the  other  side, 

and  should  be  jet  up  in  the  an^jw^r. 

Judgment  reversed. 


BARKER  V.  H.  &  ST.  J.  R.  R.  CO. 

91   Mo.,  80.      [1886.] 

Ray,  J.  The  petition  on  which  this  cause  was  tried  is  as  fol- 
lows :    ' '  Plaintiff  states  that  upon  the day  of ,  she 

was  lawfully  married  to  Edward  B.  Barker,  deceased,  late  of 
Buchannan  county,  and  at  the  times  hereinafter  mentioned  she 
was  the  wife  and  now  is  the  widow  of  said  deceased,  Edward  B. 
Barker. 

"Plaintiff  states  that  the  defendant  now  is,  and  at  the  times 
hereinafter  mentioned  was,  a  corporation  duly  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  state  of  Missouri, 
and  that  it  then  was  and  still  is  engaged  in  running  its  steam 
locomotives,  its  cars  and  trains  of  cars,  for  the  transportation  of 
persons  and  goods  between  the  city  of  Atchison,  in  the  state  of 
Kansas,  and  the  city  of  Hannibal,  in  the  state  of  Missouri,  and 
particularly  through  and  between  the  city  of  St.  Joseph,  in 
Buchanan  county,  and  the  town  of  Easton,  in  said  county,  and 
state  of  Missouri." 

"Plaintiff  states  that  the  defendant,  on  the  fifteenth  day  of 
April,  1879,  by  its  servants,  agents,  and  employees,  carelessly, 
negligently,  unskillfully,  and  recklessly,  ran  one  of  its  engines 
and  trains  of  cars  upon  and  over  the  said  Edward  B.  Barker,  and 
thereby  struck  and  inflicted  grievous  bodily  injury  upon  the 
paid  Edward  B.  Barker,  by  reason  of  which  the  said  Edward  B. 
Barker  was  then  and  there  instantly  killed. 


440  THE  COMPLAINT,  [ClIAT.  Ill, 

"Plaintiff  states  that  Edward  B.  Barker,  was  run  over  and 
killed,  as  aforesaid,  within  one  year  before  the  commencement  oT 
this  suit,  and  at  a  point  on  the  defendant's  railroad  track 
■between  the  said  city  of  St.  Joseph,  and  the  said  town  of  Easton, 
about  one  mile  southeast  of  the  said  city  of  St.  Joseph." 

"Plaintiff  states  that  the  deceased,  Edward  B,  Barker,  was 
run  over  and  killed,  as  aforesaid,  by  the  defendant,  without  any 
fault  or  negligence  whatever  on  the  part  of  the  said  deceased." 

"Wherefore,  plaintiff'  prays  judgment  against  defendant  for 
the  sum  of  five  thousand  dollars,  according  to  the  statute  in  such 
case  made  and  provided,  together  with  the  costs  of  this  action." 

The  answer  of  defendant  was  as  follows : 

"Defendant,  for  answer  to  the  plaintiff's  petition,  denies  each 
and  every  allegation  therein,  excepting,  only,  the  allegation  that 
defendant  is  a  corporation.  Defendant,  for  further  answer,  says, 
that  the  injury  sued  for  was  not  occasioned  by  any  negligence  or 
default  of  the  defendant,  or  its  servants,  or  agents,  but  by  the 
carelessness  and  negligence  of  the  deceased,  Edward  B.  Barker." 

The  reply  of  plaintiff  was  a  general  denial  of  the  new  matter 
contained  in  the  answer.  The  trial  resulted  in  a  verdict  in 
plaintiff's  favor,  for  the  sum  of  five  thousand  dollars.  The 
defendant  filed,  in  due  time,  its  motion  for  a  new  trial  and  in 
arrest,  assigning  in  the  latter,  among  others,  the  ground  that  the 
petition  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action.  Both  of  said  motions  were  overruled,  judgment  was 
entered  upon  the  verdict,  and  the  case  appealed  to  this  court. 

The  plaintiff  and  her  deceased  husband  resided  near  defend- 
ant 's  tracks,  about  two  or  three  miles  from  St.  Joseph,and  about 
eight  or  nine  o'clock,  in  the  morning  of  April  15, 1879,  the  plain- 
tiff's husband,  while  walking  along  the  track,  in  the  direction  of 
St.  Joseph,  and  about  one  hundred  yards  from  his  residence,  was 
ran  over  and  killed  by  one  of  the  defendant's  passenger  trains, 
coming  from  the  east  and  going  towards  St.  Joseph.  This  action 
was  begun  in  the  Circuit  Court  of  Buchannan  county,  April  9, 
1880,  or  a  year,  lacking  a  few  days,  thereafter.  The  object  of  the 
action  was  to  recover  damages  for  the  husband's  death,  occa- 
sioned, as  alleged,  through  defendant's  negligence  in  running 
said  train.  In  the  view  we  take  of  a  controlling  question  pre- 
sented by  the  record,  we  deem  the  foregoing  a  sufficient  statement 
of  the  case. 

It  will  be  observed  that  the  suit  was  instituted  more  than  six 


Sec.  1.]  BARKER  V.  H.  &  ST.  J.  R.  R.  CO.  441 

months  after  the  death  occurred,  but  within  the  year,  and  that 
there  is  no  averment  in  the  petition  that  there  were  no  minor 
children,  and,  we  may  further  add,  that  there  is  nothing  in  the 
evidence  or  record  that  discloses  whether  or  not  there  were  such 
minor  children.  The  statute  provides  that  such  damages  as  are 
here  sought  to  be  recovered  may  be  sued  for  "first  by  the  hus- 
band or  wife  of  the  deceased ;  or,  second,  if  there  be  no  husband 
or  wife,  or  he  or  she  fails  to  sue  within  six  months  after  such 
death,  then  by  the  minor  children  or  children  of  the  deceased; 
or,  third,  if  such  deceased  be  a  minor,  and  unmarried,  then  by 
the  father  and  mother,  who  may  join  in  the  suit,  and  each  shall 
have  an  equal  interest  in  the  judgment;  or,  if  either  be  dead, 
then  by  the  survivor."  R.  S.  1879,  sec.  2121.  Section  2125,  Re- 
vised Statutes,  provides  that  every  action  instituted  by  virtue  of 
the  preceding  section  of  the  chapter  shall  be  commenced  within 
one  year  after  the  cause  of  such  action  shall  accrue. 

It  is  contended,  for  the  appellant,  that  the  right  of  action  is 
vested,  and  only  remains  in  the  wife,  absolutely,  for  the  said 
period  of  six  months,  and  that  her  right  to  sue,  after  the  expira- 
tion of  the  six  months,  is  conditional  on  the  fact  whether  or  not 
there  are  minor  children,  and  that  the  petition  is  fatally  defec- 
tive, for  the  want  of  a  further  averment,  alleging  that  there  were 
no  minor  children.  On  the  other  hand,  it  is  contended,  for  the 
respondent,  that  the  provisions  of  the  statute,  as  to  the  time  in 
which  the  wife  may  bring  her  action,  are  not  conditions,  but  are 
in  the  nature  of  a  limitation,  only — that  they  merely  affect  the 
remedy,  and  limit  the  enforcement  of  the  right — and  that  the 
lapse  of  the  six  months  being  such  a  limitation,  it  was  not  neces- 
sary for  the  plaintiff  to  allege  the  non-existence  of  minor  children 
in  the  petition ;  but  that  the  same  was  a  defense  to  be  pleaded 
and  proved  by  the  defendant.  This  presents  the  controlling  ques- 
tion, to  which  reference  has  been  already  made. 

It  may  be  observed  that  damages  for  a  tort  to  the  person,  rcr 
suiting  in  death,  were  not  recoverable  at  common  law,  nor  could  ^ J^   \ 
husband  or  wife,  parent  or  child,  recover  any  pecuniary  compen- '  Jt^^'^^sJ^ 
sation  therefor  against  the  wrongdoer.    Our  statute,  on  this  sub-  '^^^^"'^ 
lect,  both  gives  the  right  of  action,  and  provides  the  remedy,  for  '^■^"^^vTl 
dhe  death,  where  none  existed,  at  common  law,  and  where  an 
■action  is  brought,  under  the  statute,  it  can  only  be  maintained 
^ubijecTto  the  limitation  and  conditions  imposed  thereby!     In" 
conlerring  the  right  of  action,  and  in  providing  such  remedy,  in 


442  THE  COMPLAINT.  [CUAP.  III. 

desiynatini;  when,  and  by  whom,  suits  may  be  brouu;ht,  it  was,  as 
a  matter  of  course,  competent  for  the  legislature  to  provide  and 
impose,  such  conditions  as  it  might  deem  proper,  and  the  condi- 
tions thus  imposed  modify  and  qualify  the  right  of  recovery, 
or  form,  rather,  we  think,  a  part  of  the  right  itself,  and  upon 
which  its  exercise  depends.  In  the  stateute  which  creates  the 
right  of  action,  and  in  the  same  section  in  which  the  statutory 
right  and  remedy  is  thus  conferred  upon  the  husband  or  wife,  it 
is  further  provided,  by  the  second  sub-division,  as  we  have  seen, 
^that,  if  there  be  no  husband  or  wife,  or  he  or  she  fails  to  sue  in 
six  months  after  the  death,  the  right  of  action  therefor  shall  be 
vested  in  the  minor  children  of  the  deceased,  if  there  be  such. 
^'^^^^'-W-   This  provision  is  not,  we  think,  merely  a  limitation  or  bar  to  the 


VN/^-»C3>i. 


%^  remedy  of  the  wife,  but  is  a  bar  to  the  rm/iLjtseli,  if  there  are 
^*"**~"  '^  minor  children,  and  the  existence." or  non-existence  of  such  minor 
"^JS^^  children  is  to  be  held,  we  think,  as  of  the  RuhstancP.  of  thp  ngrjif 
„J^g^-^  of  the  wife  to  sue  after  the  six  months  have  expired.  The  right 
/sJIjL^Sji^  of  the  husband  or  wife  to  sue  is  absolutely  for  and  during  the 
six  months  after  the  death.  Thereafter,  it  is  within  the  year,  as 
we  think,  a  conditional  right.  It  is  not  a  proviso,  exception,  or 
limitation,  enacted  in  a  separate  clause  or  section,  but  is  incor- 
porated, as  we  have  said,  in  the  statute  and  section  which  gives 
the  right  of  action  and  authorizes  her  to  sue  and  recover  the 
damages.  That  this  proviso,  or  condition,  is  something  more  than 
a  mere  limitation  upon  the  remedy  of  the  widow,  is,  we  think, 
more  apparent  from  a  further  consideration  of  the  section,  and 
the  other  clause  thereof.  For  example,  the  right  of  the  parents 
to  sue  under  the  third  sub-division  is  based  upon  the  fact 
whether  the  deceased  was  a  minor,  unmarried,  which  are  we 
think,  conditions  precedent  to  a  recovery  on  the  part  of  the  par- 
ents. Suppose,  for  example,  that,  in  an  action  by  them,  under 
the  statute,  it  was  neither  averred  in  the  petition  nor  proved  on 
the  trial,  that  the  deceased  was  a  minor,  and  unmarried,  could 
a  recovery  be  had?  Again,  suppose,  for  example,  the  minor 
child  or  children  brought  the  action  within  six  months  from  the 
death;  or,  suppose  further,  that  such  minor  children  instituted 
suit  after  the  expiration  of  the  six  months,  and  it  was  neither 
alleged  in  the  petition  nor  shown  by  the  evidence,  that  there 
was  no  husband  or  wife,  or  that  the  husband  or  widow,  as  the 
case  might  be,  had  failed  to  sue  in  the  six  months. 

In  none  of  these  cases  could  a  recovery,  as  we  think,  be  prop- 


Sec.  l.J  BARKER  V.  H.  &  ST.  J.  R.  R.  CO.  443 

erly  had ;  or  again,  suppose  that,  as  a  matter  of  fact,  there  are 
in  this  ease,  minor  children,  and,  as  we  have  said,  there  is 
nothing  to  show  whether  there  are  or  not,  and  there  is,  we  think, 
no  presumption  of  law  or  fact  to  be  indulged,  as  to  whether 
there  are  or  not,  could  they  be  deprived  or  barred  of  their  right 
of  action,  expressly  conferred  upon  them  by  the  statute  and, 
duly  brought  within  the  year,  by  a  recovery  on  the  part  of  the 
widow  in  an  action  brought  by  her  after  the  expiration  of  the 
six  months  ?  We  think  not.  31  Mo.  574.  So  in  the  case  now 
before  us,  where  the  action  is  brought  by  the  widow  after  the 
expiration  of  the  six  months,  her  right  to  maintain  the  same  iT 
conditional  and  depends  on  the  non-existence  of  the  minor  chil- 
dren, _a_^materiar^nd[ne^^ 

was  not  alleged  or  proved.  Section  2125rabove  set  oi7r~7^~i^ 
think,  a  statute  containing  a  limitation  of  time  only,  and  ap- 
plies to  the  remedy  or  enforcement  of  the  rights  conferred  by 
the  damage  act.  Its  existence  as  a  bar  depends,  not  upon  the 
existence  of  any  party,  or  upon  any  thing  else  beside  the  mere 
lapse  of  the  period  of  time  designated.  In  regard  to  such  stat- 
utes, and  other  statutes  of  limitations  of  like  import,  not  thus 
coupled  with,  or  annexed  to,  the  right  of  action,  the  grounds 
urged  by  respondent,  and  the  authorities  cited,  in  the  main  ap- 
ply, we  think,  with  more  force. 

As  in  our  judgment  the  fact,  if  such  it  is.  that  there_was_mx 
minor  child,  was  one  material  and  necessary  to  be  shown,  to  en-/ 
title  the  plaintiff  to  recover  in  this  action,  which  was  begun 
after  the  six  months  had  expired,  and  as  there  was  no  evidence 
offered  in  that  behalf,  the  instruction  in  the  nature  of  a  de-  j 
murrer  to  the  evidence,  asked  by  the  defendant  at  the  close  of/ 
the  evidence,  should  have  been    given.     And  in  the  absence  of 
the  proper  averment  in  the  petition,  and  in  the  failure  of  the 
proof  as  to  whether  there  were  such  minor  children,  we  feel  con- 
strained to  reverse  the  judgment  and  remand  the  cause.     Au- 
thorities are  not  wanting,  we  think  to  support  these  views.  Some 
of  them  are  referred  to  in  the  brief  of  appellant,  but,  as  we  are 
led  to  the  conclusion  we  have  reached,  by  a  construction  of  our 
statute  on  the  subject,  the  authorities  need  not  all  be  specially 
cited  or  quoted.    Railroad  v.  Hine,  Adm'r,  25  0.  St.  629,  634; 
Wood  on  Lim.  of  Acts,  sec.  9,  p.  23. 

Our  own  court  has  had  occasion  to  construe  the  statute  in 
question   (section  2121,  supra,)   in  cases  somewhat  kindred  to 


444  THE  COMPLAINT.  [ChAP.  III. 

this.  In  the  case  of  Coover  v.  Moore,  31  Mo.  574,  576,  it  was 
lield  that,  where  the  person  killed  left  minor  children,  if  the 
husband  or  wife  of  the  deceased  failed  to  sue  within  six  months 
after  the  death,  the  right  of  action  of  the  wife  or  husband  is 
barred  and  gone,  and  that  of  the  minor  children  vested  abso- 
lutely. It  is  further  said,  that  "there  being  thus  no  general 
right  of  recovery,  open  to  all  persons,  representing  the  estate 
of  the  deceased,  or  interested  in  liis  life,  only  such  persons  can 
recover  in  such  time,  and  in  such  manner  as  is  set  forth  in  the 
statute."  In  the  case  of  McNamara  v.  Slavens,  76  Mo.  329, 
where  "M"  being  killed,  through  the  alleged  negligence  of  de- 
fendant, his  widow  brought  an  action  against  defendant,  which 
action  she  voluntarily  dismissed.  The  minor  children,  after  the 
expiration  of  six  months  from  the  death  of  the  father,  com- 
menced another  action ;  it  was  held,  this  action  would  not  lie,  as 
the  wife  had  not  ''failed  to  sue"  within  the  statute.  In  stat- 
utory actions  of  this  sort,  the  party  suing  must  bring  himself 
strictly  within  the  statutory  requirements,  necessary  to  confer 
the  right,  and  this  must  appear  in  his  petition;  otherwise,  it 
shows  no  cause  of  action. 

For  these  reasons,  the  judgment  of  the  circuit  court  is  re- 
versed and  the  cause  remanded.  All  concur,  except  Sherwood, 
J.,  absent. 


^McHENKY  V.  JEWETT. 

90  N.  Y.  58.     [1882.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court,  in  the  first  judicial  department,  made  Feb.  3,  1882,  which 
affirmed  an  order  of  general  term,  granting  a  preliminary  in- 
junction herein.     (Reported  below,  26  Hun,  453.) 

The  complaint  herein,  after  alleging  facts  showing  plaintiff's 
title,  to  certain  shares  of  the  stock  of  the  Cleveland,  Columbus, 
Cincinnati  and  Indianapolis  Railway  Company,  which  were 
pledged  as  security  for  a  loan,  and  were  transferred  on  the 
books  of  the  company  to  defendant  as  trustee  for  the  pledgee, 
also  alleging  that  an  accounting  was  pending  to  determine  the 
amount  due  plaintiff,  and  his  intention  and  ability  to  redeem, 
concluded  as  follows: 


Sec,  1.]  M 'henry  v.  jewett.  445 

"The  plaintiff  further  shows,  that  the  defendant  is  president 
of  the  New  York,  Lake  Erie  and  Western  Railway  Company, 
and  that,  by  reason  of  his  control  of  the  said  Cleveland  shares 
hereinbefore  mentioned,  he  has  been  enabled,  to  a  very  great 
extent,  to  control  the  management  of  the  Cleveland,  Columbus, 
Cincinnati  and  Indianapolis  Railway  Company,  and  has  man- 
aged the  same  so  as  to  best  subserve  the  interests  of  the  New 
York,  Lake  Erie  and  Western  Railway  Company,  with  little  or 
no  regard  to  the  best  interests  of  the  Cleveland,  Columbus  and 
Cincinnati  road. 

The  plaintiff  further  shows  that  it  is  greatly  against  his  in- 
terest as  a  shareholder  of  the  said  Cleveland,  Columbus,  Cin- 
cinnati and  Indianapolis  Railway  Company,  to  permit  the  de- 
fendant to  vote  upon  said  shares. 

He  further  shows  that  at  elections  heretofore  held  by  the 
shareholders  of  the  Cleveland,  Columbus,  Cincinnati  and  In- 
dianapolis Company  the  defendant  has  voted  on  said  11,477 
shares  of  said  stock,  and  claims  the  right  to  vote  thereon  at  fu- 
ture elections,  and  plaintiff  fears  he  will  do  so  imless  restrained 
and  enjoined  from  so  doing. 

Plaintiff  further  shows  that  he  would  suffer  great  and  irre- 
parable injury  if  the  defendant  should  be  permitted  to  vote  on 
said  shares. 

The  plaintiff  demands  judgment  herein,  that  the  defendant 
be  restrained  and  enjoined  from  voting,  either  in  person  or  by 
proxy,  on  11,477  shares  of  the  capital  stock  of  the  Cleveland, 
Columbus,  Cincinnati  and  Indianapolis  Railway  Company,  or 
upon  any  part  of  said  11,477  shares  which  are  now  registered 
upon  the  books  of  said  company  in  the  name  of  said  "H.  J. 
Jewett,  Trustee,"  at  any  meeting  of  stockholders  for  the  elec- 
tion of  directors  of  said  company,  or  at  any  meeting  of  stock- 
holders of  said  company  for  any  purpose  whatever. 

And  that  said  Hugh  J.  Jewett  be  enjoined  and  restrained  from 
giving  any  proxy  or  power  to  any  other  person  authorizing  such 
shares,  or  any  part  thereof,  to  be  voted  on  at  any  meeting  of 
stockholders." 

The  order  in  question  restrained  defendant  from  voting  upon 
the  stock  in  person  or  by  proxy,  or  from  giving  a  proxy  pendente 
lite. 

Andrews,  Ch.  J.  The  complaint  shows  that  the  plaintiff  is 
pledgor  of  shares  of  railroad  stock  transferred  on  the  books  of 


■f* 


446  THE  COMPLAINT.  [ChaP.  III. 

the  company  to  the  defendant  as  trustee  for  the  pledgee,  and 
the  action  is  brought  to  restrain  the  defendant  from  voting  upon 
the  shares  at  the  meetings  of  stockholders,  which  it  is  alleged  he 
has  heretofore  done,  and  claims  the  right  to  do  in  the  future 
by  reason  of  his  title  and  right  as  trustee  of  the  stock.  The 
order  from  which  this  appeal  is  taken,  granted  a  temporary  in- 
junction restraining  the  defendant,  pendente  lite,  from  voting 
on  the  shares.  We  think  the  injunction  was  improperly  al- 
lowed, for  the  reason  that  it  does  not  appear  from  the  com- 
plaint that  the  plaintiff  is  entitled  to  the  final  relief  for  which 
the  action  is  brought,  and  in  such  case  a  temporary  injunction 
is  unauthorized.  (Code,  sec.  603.)  It  is  claimed  on  the  part 
of  the  plaintiff  that  within  the  general  rule  that  the  pledgee  has 
no  right  to  use  the  thing  pledged,  the  defendant  is  not  entitled 
to  vote  upon  the  shares,  which,  it  is  insisted,  is  a  use  of  the 
shares  in  violation  of  this'  rule.  On  the  other  hand  the  defend- 
ant claims  that  the  voting  power  passes  to  the  pledgee  of  cor- 
porate shares  transferred  on  the  books  of  the  corporation  to  the 
pledgee,  as  incident  to  the  pledge,  and  according  to  the  pre- 
sumed intention  of  the  parties.  Without  considering  this 
question,  but  conceding  the  plaintiff's  claim,  it  does  not  follow 
that  he  is  entitled  to  an  injunction  restraining  the  defendant 
from  voting  on  the  shares.  It  is  not  sufficient  to  authorize  the 
remedy  by  injunction,  that  a  violation  of  a  naked  legal  right  of 
property  is  threatened.  There  must  be  some  special  ground  of 
jurisdiction,  and  Mhere  an  injunction  is  the  final  relief  sought, 
facts  which  entitle  the  plaintiff  to  this  remedy,  must  be  averred 
in  the  complaint,  and  established  on  the  hearing.  The  complaint 
in  this  case  is  bare  of  any  facts  authorizing  final  relief  by  in- 
junction. It  is  true  that  it  is  alleged  that  the  defendant  by  the 
use  of  the  shares,  has  been  enabled  to  a  great  extent  to  control 
the  management  of  the  corporation  in  the  interest  of  the  New 
York,  Lake  Erie  and  Great  Western  Railway  Company,  with 
little  or  no  regard  to  the  best  interests  of  the  company  issuing 
the  shares.  But  there  are  no  facts  supporting  this  allegation, 
nor  is  it  averred  that  the  interests  of  the  latter  company  have 
been  prejudiced,  or  that  the  value  of  the  shares  has  been  im- 
paired by  the  acts  of  the  defendant.  So  also  it  is  alleged  that 
it  is  greatly  against  the  plaintiff's  interest  as  a  shareholder,  to 
permit  the  defendant  to  vote  upon  the  shares,  and  that  the 
plaintiff  will  suffer  great  and  irreparable  injury,  if  the  defend- 


Sec.  1.]  M 'henry  v.  jewett.  447 

aut  is  permitted  to  do  so.  But  no  facts  justifying  these  conclu- 
sions, are  stated,  and  the  mere  allegation  of  serious  or  irrepar- 
able injury,  apprehended  or  threatened,  not  supported  b^^  facts 
or  circumstances  tending  to  justify  it,  it  is  clearly  insufficient. 
Neither  injury  to  the  plaintiff's  property,  inadequacy  of  the  le- 
gal remedy,  or  any  pressing  or  serious  emergency,  or  danger  of 
loss,  or  other  special  ground  of  jurisdiction,  is  shown  by  the 
complaint.  The  complaint,  therefore,  does  not  show  that  the 
plaintiff  is  entitled  to  final  relief  by  injunction.  (Corporation 
etc.  V.  Mapes,  6  Johns.  Ch.  46;  New  York  Printing,  etc.  Estab- 
lishment V.  Fitch,  1  Paige  98 ;  High  on  Injunctions,  §§  22,  34, 
35,  and  cases  cited.)  The  preliminary  injunction  was  granted 
upon  the  complaint,  and  an  affidavit  verifying  the  statements 
therein,  without  stating  any  additional  facts.  It  is  doubtless 
sufficient  that  a  probable  or  prima  facie  case  be  made,  to  jus- 
tify the  granting  of  an  injunction,  pendente  lite,  but  where,  as 
in  this  case,  it  clearly  appears  that  the  complaint  shows  no  cause 
of  action,  then  a  preliminary  injunction  is  unauthorized,  and 
the  granting  of  it  is  error  in  law,  which  may  be  reviewed  by 
this  court,  on  appeal.  (Code,  §190,  sub.  2;  Allen  v.  Meyer, 
73  N.  Y.  1 ;  Wright  v.  Brown,  67  id.  1 ;  Collins  v.  Collins,  71  id. 
270;  Paul  V.  Munger,  47  id.  469.) 

The  order  of  the  general  and  special  terms  should  therefore 
be  reversed,  with  costs. 


C>-<Xiuj-vs, 


CHRISTAL  V.  CRAIG. 

80  Mo.  367.     [1883.] 

Phillips,  C.     This  is  an  action    for   slander.     The    petition 
contains  but  one  count,  although  it    sets    out    several    distinct 
causes   of   action.      The   first   assignment   of  words  spoken   is:  i>>^''v^-A-'J>- ,  ^ 
"You  and  your  mob  all  swore  to  lies  in  the  probate  court  in  <»-***-*y-*.  **-*** 
Macon  in  my  suit  against  the  estate.     You  and  John,  Lin  and  nV^''^'^  ^ 
Martha  all  swore  to  a  lie  in  that  case."     The  second  averment  ^—^^^^''^v  t 
is :    "  Your  son  Lin  has  no  father.    He  never  did  have  any.  He    ^ 
don't  belong  to  the  Christal  family.     He  is  not  Stewart  Chris- 
tal's  child."     Third:     "You  tied  horses  on  the  railroad  to  get 
them  killed,  and  you  got  the  benefit  of  it,  and  you  know  you 
did."     Fourth:     "You  have  been  all  over  my  place  at  night, 


448  TUE  COMPLAINT.  [ChM'.  HI. 

and  in  my  smoke  huuse  pilfering;  you  have  been  in  my  smoke 
house  a  dozen  times  after  night."  Fifth:  "You  let  your  hus- 
band starve  to  death  for  want  of  something  to  eat."  Sixth: 
"You  have  took  my  pocketbook  and  money,  and  got  it  there  in 
your  bucket. ' '  To  all  of  which  there  was  the  general  averment : 
"He,  the  defendant,  thereby  meaning  to  charge  plaintiff  with 
the  heinous  crimes  of  perjury,  larceny  and  adultery."  There 
was  no  ad  damnum  clause  to  the  petition,  but  the  following 
prayer  at  the  conclusion  of  the  petition:  "Wherefore  plaintiff 
prays  judgment  against  the  defendant  for  the  sum  of  $5,000,  for 
costs,  etc."     The  answer  was  a  general  denial. 

At  the  trial  the  defendant  objected  to  the  introduction  of  any 
evidence,  for  the  reasons  that  the  petition  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  because  it  mingled  in 
one  and  the  same  count  several  distinct  causes  of  action,  and 
because  no  damages  are  alleged  in  the  petition.  The  court  over- 
ruled the  objection.  Defendant  then  asked  the  court  to  exclude 
all  testimony  on  the  charge  of  perjury,  for  tying  horses  on  the 
railroad  track,  and  for  starving  plaintiff's  husband,  for  the  rea- 
son that  the  charges  are  not  so  pleaded  as  to  constitute  any 
cause  of  action.  This  request  the  court  likewise  refused.  The 
testimony  and  instructions  in  the  case  will,  so  far  as  may  be 
needful,  be  noticed  in  the  proper  connection  in  the  course  of  this 
opinion.  The  jury  returned  a  verdict  for  plaintiff  in  the  sum 
of  $500,  and  judgment  was  rendered  accordingly.  From  this 
judgment  the  defendant  has  appealed  to  this  court. 

1.  The  petition  in  this  case  is  bad  pleading.  It  is  true,  as 
contended  for  by  respondent,  that  the  same  slander  may  be 
stated  many  times,  and  in  different  forms  in  the  same  count. 
But  I  apprehend  that  it  will  be  found  on  an  examination  of  the 
cases,  that  the  words  or  utterances  thus  grouped  together  in  one 
count,  after  all,  constitute  but  one  substantive  offense.  The  case 
of  Pennington  v.  Meeks,  46  ]\Io.  217,  referred  to  by  counsel,  re- 
lated solely  to  one  offense,  the  alleged  stealing  of  a  hog.  So  in 
the  case  of  Birch  v.  Benton,  26  Mo.  153,  there  was  really  but  one 
actionable  speaking  alleged,  though  in  different  phraseology. 
The  only  actionable  words  alleged  were  those  charging  the  de- 
fendant with  adultery.  But  this  petition  contains  averments 
in  the  same  count  imputing  the  crimes  of  perjury,  larceny  and 
adultery.  Each  of  these  is  a  distinct  offense  for  which  action 
might  be  laid  separately.    The  matter  of  defense  to  each  might 


Sec.  1.]  CHRIST AL    V.    CRAIG.  449 

be  distinct,  and  I  am  of  the  opinion  that  under  the  code,  while 
they  might  all  be  united  in  the  same  petition,  they  should  be 
separately  stated  with  the  relief  sought  for  each  cause  of  ac- 
tion.     R.    S.    1879,    §3512.     Bliss    on   Plead.,    §125;    Pike   v.  v^^ 
Van  Wormer,  5  How.  Pr.  171.    But  is  the  appellant  in  a  condi-  )\!^^^^ 
tion  to  take  advantage  of  the  alleged  defect?     His  remedy  was  VrxxJ^AU 
clearly  to  have  moved  the  court  for  a  rule  on  plaintiff  to  elect  N-afis^Jt.  <rv>i. . 
on  which  cause  of  action  he  would  go  to  trial,  and  to  strike  out     ^^^^^^  "* 
the  others.    Mooney  v.  Kennett,  19  Mo.  551 ;  Otis  v.  I^Iechanic  's 
Bank,  35  Mo.  128.    Having  failed  to  make  such  motion,  the  de-7'CK;  V-^A^f 
feet  of  misjoinder  is  waived.     But  does  the  defendant  waive  N  J^^^*^'*^ 
anything  more  ?    Suppose  the  fact  be  in  this  case  that  among  the  '^^Jf*^  ^  ^ 
causes  thus  united  in  the  same  count,  one  or  more  be  bad  for 
failure  of  a  sufficient  statement,  and  there  is  a  general  verdict 
on  all  the  causes,  would  the  verdict  and  judgment  be  upheld? 
The  rule  is  well  settled  that  where  the  petition  contains  several 
causes  of  action  stated  in  separate  counts,  if  one  of  the  counts 
be  bad  for  insufficiency  in  statement,  a  general  verdict  for  the 
j)laintiff  on  all  the  counts  will  not  be  sustained.    Browne!  1  v.  P. 
R.  R.  Co.,  47  Mo.  243,  and  authorities  cited.     On  principle  it 
must  obtain  that  where  the  several  causes  of  action  are  united 
in  one  count,  and  the  case  is  tried  on  all,  and  a  simple  verdict 
and  assessment  of  damages  in  favor  of  the  plaintiff,  if  one  or 
more  of  the  causes  of  action  assigned  be  bad,  so  as  not  to  sup- 
port the  verdict,  the  verdict  must  be  bad  as  to  all.     How  is  it 
possible  for  the  court  to  tell  whether  the  jury  took  one  or  all 
the  slanderous  words  into  their  estimation?     How  much  proof 
of  the  imperfect  cause,  and  how  much  on  the  good,  did  the  jury- 
consider?     Was  it  the  fact  proved  touching  the  bad  count  that 
influenced  the  verdict,  and  if  so,  to  what  extent?     Would  the 
jury  have  given  any  damages  of  moment  on  account  of  the  words 
properly  alleged  in  the  petition,  without  proof  of  the  others? 
These  are  difficulties  and  complications  incident  to  the  violation 
of  the  rules  of  good  pleading,  which  suggested  themselves  to  the 
mind  of  Judge  Scott,  in  Mooney  v.  Kennett,  19  Mo.  553.     He 
clearly  indicated  the  inclination  of  his  mind  to  the  construction 
we  here  suggest. 

The  court  below  gave,  on  behalf  of  the  plaintiff,  the  following 
instruction : 

**(3.)     If  the  jury  believe  from  the  evidence  that  the  de- 
fendant, at  the  time  and  place  and  manner  charged,  spoke  of 
29 


450  THE  COMPLAINT.  [CllAP.  III. 

and  concerning  plaintiff  the  following  words:  'Your  son  Lin 
has  no  father.  He  never  did  have  any.  lie  don't  belong  to  the 
Christal  family.  He  is  not  Stewart  Christal's  child,'  thereby 
intending  to  charge  the  plaintiff  with  adultery.  Or,  'You  have 
been  all  over  my  place  after  night,  and  in  my  smoke-house  pil- 
fering. You  have  been  in  my  smoke-house  a  dozen  times  after 
night.'  Or,  'You  have  took  my  poeketbook  and  money,  and 
have  got  it  there  in  your  bucket,'  intending  at  the  time  to  charge 
the  plaintiff  with  the  crime  of  larceny,  then  the  jury  should  find 
for  the  plaintiff  and  assess  her  damages  at  any  sum  not  ex- 
ceeding $5,000." 

The  first  of  the  charges,  it  is  observed,  is  that  of  adultery.  Are 
the  facts  stated  sufficient  to  constitute  the  offense?  Section 
2120,  Revised  Statutes,  makes  it  actionable  to  publish  falsely 
that  any  person  has  been  guilty  of  adultery.  The  term  ' '  adult- 
ery" is  employed  in  this  statute  in  its  common  law  sense  or  its 
ordinary  acceptation.  For  the  plaintiff,  a  woman,  to  be  guilty 
of  this  offense  she  must  have  been  married  at  the  time.  Ab- 
bott's Law  Die,  title,  "Adultery";  1  Bouvier's  Die,  title, 
"Adultery."  It  is  not  averred  in  the  petition  that  the  plain-, 
tiff  was  a  married  woman  at  the  time  the  child  Lin  was  begot- 
ten, or  at  any  other  time,  nor  is  there  enough  averred  to  legit- 
,^.^*j.u5w.-  imately  authorize  the  inference.  Unquestionably  at  common  law 
r^wvj  there  should  have  be^en^a  colloquium  averring  her  coverture,  or 
y^-^  the  birth  of  the  child  in  lawful  wedlock.  Has  the  statute  in 
♦-  any  wise  obviated  or  modified  this  rule  ?  Section  3552,  Revised 
Statutes,  declares  that :  "In  the  action  for  slander  it  shall  not 
,  iW.^^'C^  1)6  necessary  to  state  in  the  petition  any  extrinsic  facts,  for  the 
^;;^tr^^^^  purpose  of  showing  the  application  to  the  plaintiff  of  the  de- 
"^  famatory  matter  out  of  which  the  cause  of  action  arose,  but  it 

shall  be  sufficient  to  state  generally,  that  the    same    was    pub- 
lished or  spoken  concerning  the  plaintiff. ' '    This  provision,  how- 
ever, dispenses  with  the  employment  of  the  colloquium  only  so 
,-ji  :/» tSUuSk.    far  as  it  shows  "  thatthe_def  amatory  words  applied  to  the  plain- 
'^*'*^'^^^*       tiff?'  and  goes  no  further.     "All  the  averments  necessary  in 
^\5*^         common  law  pleading  to  show  the  meaning  of  the  words  must 
3^^       still  be  made."    Bliss  Plead.,  Sec.  305.    The  change  made  by  the 


•J^  USVirs- 


^^^...y,^'^.^  statute  in  the  rule  of  pleading  in  this  respect,  is  not  to  require  a 

i-'ty*-'^'^^  statement  of  the  extrinsic  facts  showing  the  application  of  the 

J^^^"*^"^  words  to  the  plaintiff.     But  the  exirinsic  facts,  whpu  not  om. 

^ — '■  braced  in  the  imputed  words  to  show  their  meaning  and  the 


Ux-X 


Sec.  1.]  CHRISTAL    V.    CRAIG.  451 

character  of  the  person  to  whom  applied,  must  still  be  stated  as 
at  common  law.  Fry  v.  Bennett,  5  Sandf.  54;  Pike  v.  Van 
Wormer,  5  How.  Pr.,  supra;  Curry  v.  Collins,  37  Mo.  328,  329. 
But  is  said  the  innuendo  supplies  the  defect,  in  that  it  says: 
(^"Meaning  he  was  not  a  child  of  plaintiff's  husband. "A The  of- "^ 
fice  of  the  innuendo  is  simply  to  apply  the  words.  It  is  never  a  ^^  Aa/^^a^*^ 
substitute  for  an  averment.  It  is  not  the  statement  of  a  fact,  c -i>,,,^  ■ 
but  an  inference.  Being  merely  explanatory  in  its  function,  the  _3^,3Jb-.<>.  f^ 
only  question  raised  by  it  is,  whether  the  explanation  given  be  ^,^jo-Jc:  Aj.lii 
a  legitimate  deduction  from  the  fact  stated.  Authorities  cited,  VyMA:  /9>^ 
supra;  Birch  v.  Benton,  26  Mo.  154;  Bundy  v.  Hart,  46  Mo.  464.  oo->'s*:  ^fsA 
This  issue,  therefore,  was  improperly  submitted  to  the  jury,  and  ^^J^  «.vKrs*^ 
the  instruction  in  that  respect  was  erroneous.  c>^^  S-»t^-  i 

II.  Another  charge  made  in  the  petition,  and  submitted  by 
the  court  to  the  jury  is:  "You  have  took  my  pocketbook  andi 
mone}^,  and  have  got  it  there  in  your  bucket. ' '  "We  do  not  think 
these  words  actionable  per  se,  Avithcut  some  explanatory  aver-  ^^^..^^s^  W 
ment  showing  their  application,  If  they  were  intended  and  un- 
derstood to  impute  the  crime  of  larceny,  they  would  be  actionable 
per  se.  But  the  question  of  pleading  is,  do  they,  on  their  face, 
without  more,  convey  such  imputation?  To  say  you  have  my 
pocketbook  or  money  in  your  bucket,  does  not  neces.sarily  or  le- 
gally imply  its  theft.  The  party  might  reasonably  have  so  taken 
it  under  a  claim  of  right,  or  through  mistake  or  in  sport. 

This  question  is  well  considered  in  Andrews  v.  Woodmansee, 
15  Wend.  232.  The  charge  was  forgery.  The  language  inter 
allia,  was:  "You  have  got  a  note  with  my  handwriting  to  it.  I 
never  signed  a  note  with  Andrews.  I  never  put  my  name  to 
that  note,  nor  gave  him  liberty  to  do  it  in  God's  world."  The 
words  were  followed  by  appropriate  innuendoes.  The  declara- 
tion was  held  to  be  bad  for  lack  of  the  extrinsic  explanatory 
matter.  The  court  say :  ' '  The  conclusion  does  not  follow  from 
the  words.  Supposing  them  to  be  true,  the  defendant  may  still 
have  authorized  some  third  person  to  subscribe  hLs  name  to  the 
note,  or  if  it  be  a  forgery,  the  plaintiff  may  have  passed  it  to 
Francher  without  any  knowledge  of  that  fact.  If  the  words  can 
be  rendered  actionable,  it  cannot  be  done  without  some  further 
averment,  either  about  the  occasion  or  manner  of  speaking  them, 
or  the  intent  with  which  they  were  uttered."  The  doctrine  of 
that  case  is  affirmed  in  Curry  v.  Collins,  supra.  Aside  from  this, 
the  words  laid  in  the  declaration  in  respect  of  the  pocketbook 


452  THE  COMPLAINT.  [Cn.vp.  III. 

and  money,  were  not  sustained  by  the  proof.     The  charge  is: 
"You  have  took  my  pocketbook  and  money,"  etc.     The  testi- 
mony most  approximating  the  language  is  that  of  the  plaintiff 
herself.     Her  version  is:     "You  have  got  $35  or  $40  in  your 
bucket  you  have  stole  from  me. "  "  Yes,  you  have  got  it  right  there 
in  your  bucket."    Manifestly,  these  are  not  the  actionable  words 
laid,  nor  indeed,  the  substance  of  them.     The  offense  proved 
^^^^       ,  may  be  equivalent  to  that  alleged,  but  this    is    not    sufficient. 
^xx^  yr-^'-(T^'^"^^  ^^^^  charge  be  substantially  the  same,  yet  if  in  different 
^L.u/>>.»JU>«^^rU  phraseology  it  will  not  support  the  action.    Berry  v.  Dryden,  7 

o->*^ «^-    Mo.  324;  Birch  v.  Benton,  s^ipra,  161,  162.     In  fact  it  is  veiy 

questionable  whether  any  of  the  charges  were  sustained  in  le- 
gal strictness  by  the  proofs. 

III.  It  is  further  assigned  for  error  that  the  petition  is  rad- 
ically defective  in  that  it  contains  no  ad  damnum  clause.  Un- 
der the  old  system  of  pleading,  it  was  perhaps,  prerequisite  to  a 
judgment  that  the  declaration  should  contain  an  allegation  that 
the  complainant  had  thereby  been  damaged,  with  a  prayer  for 
judgment  therefor.  Deveau  v.  Skidmore,  47  Conn.  19;  Brown- 
son  V.  Wallace,  4  Blatch.  465.  But  we  incline  to  the  opinion 
that  under  our  code  of  practice,  the  petition  in  this  respect  is 
sufficient.  Section  3511,  Revised  Statutes,  requires  "a  plain 
and  concise  statement  of  the  facts,  etc.,  with  a  demand  of  the 
relief  to  which  the  plaintiff  may  suppose  himself  entitled. ' '  The 
amount  of  damages  is  ascertainable  from  the  facts  alleged,  and 
the  plaintiff's  estimate  of  them  appears  from  the  prayer.  This 
view  is  supported  by  Wait's  Practice,  Vol.  2,  p.  387.     *     *     * 

Judgment  reversed. 


BANCROFT  v.  HASLETT. 
106  Cat.  151.  [1895.] 

Henshaw,  J.  Action  for  damages  for  conversion  of  a  piano. 
Defendants  pleaded  that  the  piano  was  stored  with  them  as 
warehousemen,  and,  after  due  notice  to  plaintiff,  was  sold  to 
pay  charges.  They  claimed  that  the  sum  of  $10  was  yet  due  on 
account  of  such  charges,  and  asked  judgment  for  that  amount. 
The  appeal  is  from  the  judgment  alone. 

The  action  was  commenced  upon  November  14,  1892,  and  al- 


Sec.  1.]  BANCROFT  V.   HASLETT.  453 

leged  the  conversion  as  of  July,  1892.     The  court  fnnnrl  that,  de- 
fendants  converted  the  piano  to  their  own  use  upon  Feh.  22,     .^ 
"iSQlTThe  variance  is  immaterial  and  not  such  as  would  war- 
ranf  a  reversal  of  the  cause.    Code  Civ.  Proe.  §§  470,  475.     It 
was  not  neces.sary  at  common  law  that  the  proofs  should  be  in  J^,o3<-  ^a« — aj^ 
strict  conformity  with  the  averment  as  to  the  date  of  the  con-  ^^oAk.    p^*^ 
version.     It  was  sufficient  if,  naming  a  certain  time  before  the   '»-^  <='-^  ^^ 
commencement  of  the  action,  the  proof  established  that  the  tort  ^*■^'*■'^• 
was  committed  before  the  suing  of  the  writ.     2  Saund.  PI.  p. 
1141 ;  Gould,  PI.  §  65 ;  Rex.  v.  Bishop  of  Chester,  2  Salk.  561 ; 
1.   Greenl.  Ev.   §  71  et  seq.     No  greater  strictness  is  required 
under  our  system.     The  findings  are  sufficient.     They  show  that 
the  piano  came  into  the  defendant's  possession  against  plaintiff's 
will;  that  it  was  not  stored  because  of  plaintiff's  refusal  to  pay 
the  lawful  charges  upon  it,  but  was  stored  without  authority; 
that  plaintiff'  demanded  its  return,  and  was  refused;  and  that 
thereafter  the  defendants  converted  it  to  their  own  use.     These 
facts  sustain  the  judgment,  and  negative  the  claim  of  defend- 
ants.    Additional  findings  would  not,  therefore,  affect  the  judg- 
ment, nor  afford  the  defendants  any  relief.     Robarts  v.  Haley, 
65  Cal.  402,  4  Pac.  385 ;  Malone  v.  County  of  Del  Norte,  77  Cal. 
217,  19  Pac.  422;  Dyer  v.  Brogan,  70  Cal.  136,  11  Pac.  589; 
Diedendorff  v.  Hopkins,  95  Cal.  347,  28  Pac.  265,  and  30  Pac. 
549.    The  judgment  is  affirmed.  .  (W^ 


PIER  V.  HEIx\TlICIIOFFEN. 

53  Mo.  333.      \1873.] 

EwiNG,  Judge,  delivered  the  opinion  of  the  court. 

This  is  an  action  on  a  promissory  note  by  the  plaintiffs  as  in-  o^jy^f^^^  « 
dorsees  against  the  defendants  as  indorsers,  payable  at  the  of-  ^^^^^ST^S 
fice  of  Williams,  in  St.  Paul,  Minnesota ;  the  note  bears  date,  St^^^^^^^^^^J^^^^^^ 
Louis,  October  12,  1860,  and  is  payable  on  the  first  day  of  July  J/X 
thereafter  (1861.)  The  petition  contains  the  usual  averments 
of  presentment  and  demand  of  payment  at  the  maturity  of  said 
note,  refusal  to  pay,  protest  of  the  same,  and  that  defendants 
were  duly  notified  thereof.  The  answer  of  defendants  is  a  de- 
nial of  the  allegations  of  the  petition.  Plaintiffs  made  applica- 
tion for  a  continuance  of  the  cause,  on  the  ground  of  the  ab- 


454  TUE  COMPLAINT.  [CUAP.  III. 

sence  of  witnesses,  who  resided  at  St.  Paul,  by  whom  they  ex- 
pected to  prove  facts  excusing  the  delay  in  making  the  demand 
of  payment,  and  in  giving  notice  to  the  defendants.  The  motion 
for  a  continuance  being  overruled,  and  the  cause  being  submit- 
ted to  the  court, — jury  waived, — the  plaintiffs  read  the  note  in 
evidence,  and  then  offered  to  show  by  the  certificate  of  protest 
of  one  Malmros,  a  notary  public,  and  his  depositions  accom- 
panying the  same,  that  said  note  was  presented  for  payment  at 
the  place  Avhere  the  same  was  made  payable,  that  it  was  pro- 
tested, and  notice  given  the  defendants  on  the  15th  day  of  July, 
1861.  This  evidence  was  excluded  on  the  objection  of  defend- 
ants, whereupon  plaintiffs  took  a  non-suit  with  leave,  etc.  The 
motion  to  set  aside  the  non-suit  being  overruled,  the  cause  is 
brought  to  this  court  by  appeal.     *     *     * 

The  order  in  which  evidence  may  be  introduced  is  a  matter 
very  much  in  the  discretion  of  the  court,  and  this  discretion  may 
be  properly  exercised  by  inverting  the  regular  order,  and  admit- 
ting evidence  that  presupposes  facts,  which  logically  and  nat- 
urally precede  it,  but  when  such  evidence  is  offered  abstractly 
without  an  offer  to  sustain  it  by  proof  of  such  antecedent  or 
primary  facts,  and  without  which  it  would  be  wholly  unavail- 
ing, and  no  intimation  of  such  a  purpose  is  given  to  the  court, 
we  cannot  say  that  the  court  erred  in  excluding  it. 
'~^****  Vs^»>y5a      rpj^lg  evidence,  however,  was  rightly  excluded  on  more  sub- 
^.^  <M^     stantial  grounds.     The  petition  avers  that  demand  of  payment 
jj;,^^^^^3i,^ ^       was  made  at  the  maturity  of  the  note,  and  that  defendant  was 
o«>^  su^^h.*y^  ^^^ily  notified  thereof.     This  allegation  was  put  in  issue  by  the 
\^oA<v*-\ji  t«k  answer.    Neither  the  evidence  offered  nor  that  of  the  absent  wit- 
,.,.jo-r^~4L  »^    ness,  as  disclosed  by  the  affidavit  for  a  continuance,  tended  to 
o^^'^^^'--*^^      prove  this  averment,  but  on  the  contrary  to  disprove  it  by  show- 
ing an  excuse  for  not  making  the  demand  at  the  time  alleged  in 
the  petition. 

It  may  be  conceded,  that  at  common  law  this  petition  would 
^^  a^   j  be  sufficient;  that  the  averments  w'ould  be  sustained  bv  nroof 
a.  j^  Aji'  ]    of  any  state  of  facts  showing  an  excuse  according  to  the  custom 
of  merchants,  by  proof  of  facts  which  dispense  with  actual  de- 
mand and  show  due  diligence^  withnnt.  statinpr  thprg  specifically 
*YAxv^^*~^V  in  the  pleading. 

Is  this  good  pleading  however  under  our  code  ?  For  not  only 
the  forms  of  pleading,  but  the  rules  by  which  the  sufficiency  of 
pleadings,  except  where  otherwise  specially  provided,  are  to  be 


SkC.  1.]  PIER  V.  HEINRICHOFFEN. 


455 


determined  and  prescribed  by  our  Practice  Act      (2  W    S    §  1 
p.  1012.)  ■  '  . 

As  the  vice  of  the  old  system  of  pleadings  was  its  prolixity, 
Its  general  averments,  and  general  issues,  and  the  delay  and 
expense  inseparable  from  it,  the  new  system  (or  the  modifica- 
tions of  the  old)  which  we  have  adopted  has  little  claim  to  be 
considered  a  reform,  unless  it  avoids  such  defects  and  furnishes 
rules,  by  which  the  great  object  of  all  pleadings  is  better  at- 
tained, namely,  to  arrive  at  a  material,  certain  and  single  issue. 
Hence,  the  great  improvement  of  our  code  consists  in  requiring 
the  pleadings  to  contain  a  plain  and  concise  statement  of  the 
facts,  constituting  a  cause  of  action,  or  matter  of  defense.    (2  W. 
S.    1013,    §1015,    §3.)     Facts,    and    not    evidence,    nor    con-  ^-^-^  ^^-^'^ 
elusions  of  law,  must  be  distinctly  stated.     Ej^gry  fact,  which  ^^**^^  ^  '^ 
the  plaintiff  must  prove  to  maintain  his  suit,  i«  constitutivp,  in  "'^^  ""^^"^ 
Ihe  sense  of  the  code,  and  must  be  allecrprl.     Facts,  which  dis-  ;^^-^"-^>"^ 
pense  with  the  necessity  of  making  demand  of  payment  and  giv-  ^11^.^2 
ing  notice  to  the  indorser,  are  as  essential  to  the  plaintiff's  right   v3n  ^j^  cSil 
of  recovery,  as  the  fact  that  the  defendant  indorsed  the  note,  or  it,.  >.W^:>.. 
that  it  was  executed  and  delivered  by  the  maker,  or  that  plain-  Cj^  V*<X  U 
tiff  is  the  holder.    And  the  defendant  has  the  right  to  controvert  >^~tx^^--  \^^^ 
the  one  or  the  other  in  his  answer.    He  should  therefore  be  in-    ''V  ^5u-<y-dj^^^ 
formed  by  proper  averments  in  the  petition,  what  facts  are  re- 
lied on  to  charge  him,  so  that  he  may  have  an  opportunity  to 
controvert  them.     Such  an  allegation  of  demand  of  payment  at 
maturity,  and  due  notice  thereof  to  the  indorser,  could  give  no 
intimation  to  the  defendant  of  the  nature  of  the  evidence,  by 
Avhich  the  plaintiff  proposed  to  sustain  it.    He  could  only  know, 
that  he  received  no  notice ;  but  of  what  steps  if  any  were  taken 
to  give  it,  or  of  the  causes  of  the  failure  to  give  it,  or  of  the 
facts  relied  on  to  excuse  the  want  of  it  he  of  course  is  presumed 
to  have  no  knowledge.    These  are  matters  within  the  knowledge 
peculiarly  of  the  plaintiff',  which  he  should  allege  in  his  plead- 
ing, and  prove.     He  alleges  fads  the  legal  c^e(3^^_of_which    if 
true  could  charge  the  defendant:  but  he  claims,  th.nt  bp  «}imi1r| 
be  allowed  to  sustain  this  allegation  by  facts  of  a  totally  rliffpr. 
ent  character,  not  alleged  in  his  petition,  because  the  same  legal 
consequence  would  follow. 

In  Garvey  v.  Fowler,  4  Sandf.  665,  it  was  held,  that  where  in 
an  action  on  a  check,  facts  are  relied  on  which  excuse  notice  of 
presentment  and  non-payment,  as  that  the  drawer  had  no  funds 

«~-<»Ar   «-«~-»-<a-^— Jl<yv»Ov_    v,/srO!ji.>v_  X>-it    ip->^^v-r>>^L-«a-aJL   «rv     ^5jUr~X'v\>^  ^ 


-«rv».«.l-.ifa«^ 


456  THE  COMPLAINT.  [ClIAP.  III. 

in  the  bank  the  day  the  check  was  presented,  they  must  be  stated 
in  the  complaint.  And  that  an  averment  of  due  notice  will  not 
be  sustained  by  evidence  of  facts  excusing  notice. 

To  the  same  effect  is  Schultz  v.  Dupuy,  3  Abb.  Pr.  252. 

The  question  has  been  decided  the  same  way  in  Iowa,  Lam- 
bert &  Co.  V.  Palmer,  et  al.,  29  Iowa  104,  the  court  holding  that 
under  an  averment  like  that  in  the  case  at  bar,  there  could  be 
no  recovery  upon  proof  of  facts  amounting  to  a  waiver  of  de- 
mand and  notice,  as  a  subsequent  promise  to  pay  by  the  drawer 
or  indorser  after  full  knowledge  of  the  facts.  See,  also,  Cole  v. 
Wintercost,  12  Tex.  118. 

It  is  scarcely  necessary  to  add,  that  the  codes  of  New  York, 
Iowa  and  Texas,  in  respect  to  the  rules  of  pleading,  are  sub- 
stantially the  same  as  our  own. 

Judgment  affirmed* 

^  «^- 

GRANNIS  V.  HOOKER. 
29  Wis.  6r>.      [J 371.] 

Action  to  recover  money  received  by  the  defendant  to  plain- 
tiff's use. 

The  complaint  alleges,  in  general  terms,  the  receipt  of  $535, 
by  the  defendant  to  the  plaintiff's  use,  demand  of  payment,  and 
a  refusal  to  pay  over  the  same,  or  any  part  thereof. 

The  answer  is  a  general  denial. 

In  his  opening  at  the  trial,  the  plaintiff's  attorney  stated  the 
facts  which  he  expected  to  prove,  showing  that  the  plaintiff  was 
induced  to  pay  over  to  the  defendant  the  money  sued  for,  by 
means  of  certain  false  and  fraudulent  representations  made  to 
him  by  the  latter,  relative  to  the  purchase  of  oil  lands  for  a 
company  of  which  he  was  a  member. 

The  defendant  objected  to  the  admission  of  any  evidence  un- 
der the  complaint,  on  the  ground  that  it  does  not  state  facts  suf- 
'  iieient  to  constitute  the  cause  of  action  stated  by  the  plaintiff's 
counsel  in  the  opening. 


.•j»o->-<       /^        *Compare:      McCullough   v.    Insurance   Company,    113    Mo.    606,   in 
,V.'?.4.V^-^  "S    which  it  is  held  that  under  a  ge^fral  allpyptinn  of  performance  by  the 
I    plaintiff  he  may  prove  a  waiver  of  conditions  in  an  insurance  policy. 


Sec.  1.]  GRANNIS  V,   HOOKER.  457 

The  objection  was  sustained,  and  judgment  of  non-suit  en- 
tered; from  which  the  plaintiff  appeals. 

Cole,  J.  The  question  arising-  in  this  case  is  really  whether 
the  complaint  states  a  cause  of  action.  The  complaint  contains 
what,  under  the  former  system  of  pleading,  would  be  called  a 
count  for  money  had  and  received.  On  the  trial,  the  attorney 
of  the  plaintiff  made  a  statement  of  facts  to  the  court  and  juiy 
out  of  which  the  action  arose,  and  then  proceeded  to  support 
the  issue  on  the  part  of  the  plaintiff  by  calling  and  having  sworn 
a  witness.  Whereupon  the  defendant  objected  to  any  evidence 
being  given  under  the  complaint,  on  the  grounds  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  This 
objection  was  sustained.  The  case  therefore  stands  in  the  same 
attitude  that  it  would  on  a  general  demurrer  to  the  complaint. 

We  are  inclined  to  hold  the  complaint  sufficient  on  demurrer. 
According  to  the  statement  made  in  his  opening  by  the  plain- 
tift"s  counsel,  the  defendant  procured  the  money  sued  for  by 
means  of  fraud  in  an  oil  land  speculation.  It  is  claimed  by  the 
defendant  that  all  the  facts  in  respect  to  the  alleged  fraud  should 
have  been  distinctly  stated  in  the  complaint,  otherwise  the  plain- 
tiff is  not  entitled  to  prove  them.  On  the  other  hand,  it  is 
claimed  that  all  it  is  necessary  the  complaint  should  contain  is 
substantially  an  allegation  that  the  defendant  has  received  a 
certain  amount  of  money  to  the  use  of  the  plaintiff,  as  in  the 
old  form  of  a  declaration  in  indebitatus  assumpsit.  We  are  in- 
clined to  sanction  this  latter  view,  and  to  hold  that  the  facts, 
which,  in  the  judgment  of  law,  create  the  indebtedness  or  lia- 
bility need  not  be  set  forth  in  the  complaint.  If  the  complaint 
does  not  state  with  sufficient  certainty  the  facts  in  respect  to  the 
defendant's  obtaining  the  money  from  the  plaintiff,  the  better 
practice  is  to  move  to  have  the  pleading  made  more  definite  and 
certain.  But  we  really  do  not  see  any  more  reason  for  requiring^ 
the  complaint  to  state  all  the  facts  and  circumstances  about  th^*^^^"^ 
manner  the  defendant  obtained  or  received  possession  of  moneyf 
which  in  equity  and  good  conscience  he  ought  to  pay  over  to  thel 
plaintiff,  than,  in  ease  of  a  payment  or  loan  of  money,  to  re-' 
quire  the  pleading  to  contain  all  the  facts  in  respect  to  such  loan 
or  payment.  A  complaint  alleging  that  the  defendant  was  in: 
debted  to  the  plaintiffs  in  a  specified  sum  for  goods  sold  and  de- 
livered to  the  defendant  at  his  request,  and  that  such  sum  was 
due,  was  held  to  be  sufficient  on  demurrer  in  Allen  v.  Patterson, 


458  THE  COMPLAINT.  [CllAl'.  TIT. 

7  N.  Y.  476.  Also  a  complaint  to  recover  for  money  lent  to  and 
paid,  laid  out  and  expended  for  the  defendant,  at  his  request, 
was  held  sufficiently  definite  and  certain  on  motion  in  Cudlipp 
V.  Whipple,  4  Duer,  610.  The  statement  of  the  fact  showing 
that  the  defendant  had  received  money  to  the  use  of  the  plain- 
tiff, which  he  was  bound  to  pay  over  to  him,  was  of  the  most 
general  character,  in  Bates  v.  Cobb,  5  Bosworth  29;  Adams  v. 
Holley,  12  How.  Pr.  326;  Betts  v.  Bache,  14  Abb.  Pr.  R.  279; 
Sloman  v.  Schmidt,  8  do.,  5;  Goelth  v.  White,  35  Barb.  R.  76, 
and  yet  the  actions  were  sustained. 

The  case  of  Lienan  v.  Lincoln,  2  Duer  670,  is  cited  by  the  de- 
fendant's counsel  in  support  of  the  position  that  a  general  alle- 
gation in  a  complaint  that  the  defendant  has  received  money  to 
the  use  of  the  plaintiff  is  bad  on  demurrer.  But  a  just  criticism 
upon  this  case  will  be  found  in  note  4,  p.  213,  Tift'.  &  Smith,  N. 
T.  Prac.  The  editor  says  that,  although  the  head  note  in  Lienan 
V.  Lincoln,  states  such  a  doctrine,  yet  that  the  complaint  there 
alleged  that  the  defendant  was  indebted  to  the  plaintiff's  as- 
signor ' '  for  moneys,  notes,  and  effects  before  that  time  had  and 
received,"  while  the  account  annexed  showed  that  more  than  all 
the  balance  claimed  consisted  of  promissory  notes  received  by 
the  defendant,  and  there  was  no  allegation  that  these  notes  had 
been  paid  so  as  to  render  the  defendant  liable  for  their  amount. 
^In  the  case  before  us  it  is,  in  substance,  averred  that  the  de- 
■^fendant  received  from  the  plaintiff  five  hundred  and  thirty-five 
dollars  to  the  use  of  the  plaintiff;  that  the  plaintiff  has  de- 
manded the  payment  thereof;  and  that  the  defendant  has  re- 
fused to  pay  the  same  or  any  part  thereof.  We  are  inclined  to 
hold  this  complaint  sufficient  in  substance.* 

By  the  Court :     The  judgment  of  the  circuit  court  is  reversed, 
and  a  new  trial  ordered. 

*See,  also,  Richardson  v.  Moffitt,  92  Mo.  App.  515. 


Sec.  1.]         NEWS  company  v.  steamship  comp.vny.  459 

NEW  YOKK  NEWS  COMPANY  v.  NATIONAL 
STEAMSHIP  CO. 

148  N.  Y.  39.     [1895.] 

O'Brien,  J.  The  complaint  in  this  action  alleged  that  the 
defendant  was  indebted  to  the  plaintiff  in  the  sum  of  $591.18,  a 
balance  due  from  defendant  for  work,  labor  and  services  in  ad- 
vertising for  and  at  the  special  instance  and  request  of  the  de- 
fendant. The  defendant,  by  its  answer,  denied  this  allegation. 
The  plaintiff,  on  the  trial,  gave  proof  tending  to  establish  an 
agreement  between  the  parties  to  the  effect  that  the  plaintiff 
should  do  certain  advertising  for  the  defendant,  and  he  paid 
therefor  in  the  tickets  of  the  defendant;  that  plaintiff  did  per- 
form the  work  in  advertising,  and  had  received  thereon  a  cer- 
tain quantity  of  tickets,  but  leaving  still  dile  the  amount  stated 
in  the  complaint ;  that  the  plaintiff  had  demanded  the  balance  of 
the  bill  from  the  defendant  in  tickets,  but  the  demand  was  re- 
fused. The  plaintiff  claimed  that  these  facts  established  a 
money  indebtedness  from  the  defendant.  The  rule  in  this__state. 
seems  to  be  that,  where  a  party  agrees  to  pay  a  specific  sum,  or, 
as~in'this  case,  the  value  of  the  services  in  some  specific  articles' 
"oF  pro^ertyy  and  upon  demand  refuses  or  fails  to  deliver  the 
property,  his_obllsat[nn  is  therebv  converted  into  one  for  the 
pavment  of  money.  1  Sedg.  Dam.  (8th  ed.)  §280;  Gleason  v. 
Pinney,  5  Cow.  152;  Smith  v.  Smith,  2  Johns.  235;  Brooks  v. 
Hubbard,  3  Conn.  58.  There  was  some  conflict  in  the  evidence 
as  to  the  facts,  but  the  court  submitted  all  the  questions  to  the 
jury,  and  the  verdict  must  be  taken  as  establishing  in  plaintiff's 
favor,  the  performance  of  the  work  at  the  price  alleged,  the 
agreement  to  pay  in  tickets,  and  the  refusal  to  do  so,  and  the 
consequent  obligation  to  pay  in  money. 

The  only  point  urged  by  the  defendant  in  support  of  the  ap- 
peal which  it  is  necessary  to  consider  is  the  contention  that  the 
plaintiff  set  out  in  the  complaint  one  cause  of  action  and  recov- 
ered upon  another  and  different  cause  of  action.  The  plaintiff 
has  stated  the  facts  constituting  the  cause  of  action,  not  as  thev 
actually  existed,  but  according  to  their  legal  effect.  In  most 
cases  either  mode  of  pleading,  at  the  option  of  the  party,  is  cor- 
rect.  Bennett  v.  Judson,  21  N.  Y.  238 ;  Farron  v.  Shemood,  17 
N.  Y.  227 ;  Barney  v.  Worthington,  37  N.  Y.  116.     In  pleading 


460  THE  COMPLAINT.  [ChAP.  III. 

facts  according  to  their  legal  effect,  it  may  sometimes  happen 
that  the  opposite  party  is  left  in  the  dark  as  to  the  proof  which 
he  may  be  required  to  meet  at  the  trial,  but,  ordinarily,  this  dif- 
ficulty can  be  avoided  by  motion,  when  necessary,  to  make  the 
pleading  more  definite  and  certain.  In  this  case,  if  the  defend- 
ant had  any  doubt  as  to  the  identity  of  the  claim  that  it  was 
required  to  defend,  a  simple  demand  for  a  bill  of  particulars,  or 
a  motion,  would  make  everything  clear.  The  material  part  of 
the  complaint  was  the  allegation  of  a  money  indebtedness  by 
defendant  to  plaintiff,  and  that  allegation  was  supported  by 
proof  of  the  agreement  to  perform  the  work  for  payment  in 
tickets,  the  performance  of  the  work,  and  the  refusal  to  deliver 
the  tickets.  In  other  words,  the  fact  pleaded,  according  to  its 
legal  effect,  was  proved  by  proof  of  the  facts  as  they  existed. 
So  there  was  no  variance  that  the  defendant  can  complain  of. 
The  other  questions  discussed  relate  to  the  proofs  given.  It  is 
not  very  clear,  but  its  sufficiency  and  interpretation  were  for 
the  jury.  The  judgment  must,  therefore,  be  affirmed.  All  con- 
Q^j.  Judgment  affirmed. 

WIEDE  V.  PORTER. 
32  Minn.  429.     [1876.] 

The  complaint  alleges  the  sale  of  a  pair  of  horses  by  defend- 
ant to  Albert  Shaeffer,  with  warranty  that  they  were  good  road- 
sters, good  and  true  workers  in  harness,  and  not  balky ;  a  breach 
of  the  warranty,  and  damages  resulting  therefrom  to  Shaeffer, 
•and  an  assignment  of  the  cause  of  action  from  Shaeffer  to  the 
plaintiff.  The  answer  puts  in  issue  the  sale,  the  warranty,  and 
the  assignment.  At  the  trial  in  the  court  of  common  pleas  of 
Ramsey  county,  before  Brill,  J.,  the  plaintiff  testified  that  he 
purchased  the  horses  in  question  from  the  defendant,  and  traded 
organs  and  melodeons  for  them.  His  counsel  then  offered  to 
prove  that,  in  trading  for  the  horses,  the  plaintiff  was  acting 
for  Albert  Shaeffer,  who  w^as  the  assignee  of  Wiede  &  Ross,  for 
the  benefit  of  their  creditors,  and  that  the  horses  were  paid 
for  out  of  property  held  by  Shaeffer  as  such  assignee,  to  be  fol- 
lowed by  proof  of  the  warranty  and  breach,  and  assignment  of 
the  demand  to  plaintiff.     The  evidence  offered  was  objected  to 

o.,<iuuX/v.   .,..,^s.«,cit/;X  -^^-^    c^-U^R, *'^^   "^^ 


do-k   f 


Sec.  1.]  wiEDE  V.  porter.  461 

as  immaterial  and  not  pleaded,  the  objection  was  sustained,  and 
plaintiffs  excepted.  The  plaintiff  then  offered  in  evidence  the 
written  assignment  from  Wiede  &  Ross  to  Shaeffer,  to  be  fol- 
lowed bj'  the  proof  already  offered,  which  was  objected  to  by 
defendant  "as  immaterial,  irrelevant  and  not  pleaded,"  and 
was  rejected,  plaintiff"  excepting.  The  witness  then  testified,  "I 
was  acting  for  Albert  Shaeffer,  assignee  of  Wiede  &  Ross,  in 
making  the  trade  with  defendant  for  the  horses."  His  counsel 
then  asked  him  what  was  said  by  defendant  in  regard  to  the 
character  of  the  horses  at  the  time  of  the  trade,  to  which  the 
defendant  objected  as  "immaterial,  irrelevant,  and  not  pleaded, 
and  because  of  the  last  answer  of  the  witness  that  in  making  the 
trade  he  was  acting  for  Albert  Shaeffer,  assignee  of  Wiede  & 
Ross."  The  objection  was  sustained,  as  was  also  an  objection  to 
any  further  testimony  on  the  part  of  plaintiff'  relating  to  the 
trade,  if  Shaeffer,  in  making  the  trade,  was  acting  as  assignee  of 
"Wiede  &  Ross,  the  plaintiff  duly  excepting.  The  plaintiff  then 
rested  his  case.  The  court  directed  a  verdict  for  defendant,  on 
which  judgment  was  entered,  and  the  plaintiff  appealed. 

Cornell,  J.     This  case  comes  before  us  upon  exceptions  to  the 
ruling  of  the  court  upon  the  admissibility  of  certain  testimony 
offered  under  the  issues  made  by  the  pleadings.    The  real  ques- 
tion presented  is  whether,  upon  an  issue  raised  by  a  denial  of  ^,^,^3^ 
the  execution  of  a  contract  of  sale  and  warranty,  alleged  to  have  ^5,  cOl>~'^ 
been  made  between  defendant  and  one  Shaeffer,  it  was  compe- -p^^^,^ 
tent  to  prove  that  such  contract  was  made  by  the  duly  author- 
ized agent  of  Shaeffer ;  in  other  words,  when  the  contract  of  the 
principal,  which  constitutes  the  foundation  of  the  cause  of  ac- 
tion, is  made  through  the  intervention  of  an  agent,  is  it  neces- 
sary, in  pleading  it,  to  aver  that  fact  and  the  authority  of  the 
agent  ? 

Issuable  facts  alone  are  required  to  be  stated  in  a  pleading, 
and  those  according  to  their  logical  and  legal  effect.  In  this 
case  the  fact  traversed  by  the  answer,  the  proof  of  which  would 
support  the  action,  was  the  execution  of  the  particular  contract. 
If  it  was  entered  into  by  the  party,  its  effect  was  the  same, 
whether  done  by  the  principal  personally  or  by  his  authorized 
agent.  In  either  case  it  was  the  contract  of  the  principal.  The 
complaint  was  sufficient  to  allow  the  evidence  offered,  tending 
to  show  that  the  alleged  contract  was,  in  fact,  the  contract  for 


462 


THE  COMPLAINT. 


[Chap.  III. 


Shaeffer,  and  the  exclusion  of  such    evidence    was    error,    for 
which  a  new  trial  must  be  granted.* 

Judgment  reversed  and  new  trial  ordered. 


LsA    ^^Vo^^^-^^ 


Section  2.     The  Prayer  for  Relief. 

j<  COBB  V.  SMITH. 
-25  Wis.  261.     [1868.] 

The  plaintiffs,  in  each  of  these  cases,  appealed  from  an  order 
of  the  circuit  court  modifying  judgment  in  their  favor  which 
had  been  entered  by  the  clerk.  The  case  will  appear  from  the 
opinion. 

Paine,  J.  These  three  appeals  present  the  same  question,  and 
will  be  disposed  of  together.  The  actions  were  brought  for  a 
flowing  of  the  lands  of  the  plaintiffs  by  means  of  a  dam  erected 
and  maintained  by  the  defendants.  The  litigation  has  already 
been  twice  before  this  court.  In  Newell  v.  Smith,  15  Wis.  101, 
it  was  decided  that  the  act  purporting  to  allow  the  defendants 
to  flow  the  lands  of  others,  was  unconstitutional,  because  it  did 
not  make  any  adequate  provision  for  compensation.  In  Cobb  v. 
Smith,  16  Wis.  661,  it  was  decided  that  the  plaintiff's  were  not 
entitled  to  maintain  an  equitable  suit  to  prevent  the  reconstruc- 
tion of  the  dam,  by  reason  of  their  long  acquiescence  in  its  main- 
tenance, and  in  the  erection  of  valuable  mills  and  improve- 
ments depending  on  it  for  their  power.  And  it  was  said  that 
for  the  damage  occasioned  by  the  flowing,  the  plaintiffs  had 
"their  common-law  remedy." 

It  seems  that  the  complaints  were  then  amended,  so  as  to  turn 
them  into  actions  for  damages,  and  the  cases  proceeded  to  trial, 
and  the  plaintiffs  had  verdicts  fixing  the  amounts  of  damages 
respectively.  On  these  verdicts  the  counsel  for  the  plaintiffs 
procured  the  clerk  to  sign  judgments,  not  only  for  the  dam- 
ages and  costs,  but  also  directing  the  sheriff  to  abate  the  dam. 
Applications  were  then  made  by  the  defendants  to  set  aside  the 
latter  provision  in  each  judgment,  upon  affidavits  showing  sub- 
stantially the  same  facts  as  to  acquiescence  and  the  erection  of 


♦Compare  Lewis  v.  Hatton,  26  S.  W.  (Tex.)  50. 


Sec.  2.]  cobb  v.  smith.  463 

valuable  mills,  etc.,  that  appeared  in  the  equity  case  above  re- 
ferred to,  and  also  showing  that  this  feature  of  the  judgment 
was  a  surprise  upon  the  defendants,  who  did  not  suppose  that 
any  such  relief  was  sought  in  the  action,  and  that  the  attention 
of  the  court  was  not  called  to  it,  nor  was  that  of  the  defendant's 
counsel,  and  that  the  clerk  supposed,  when  he  signed  the  judg- 
ments, that  they  were  only  judgments  for  the  damages  and  costs 
in  pursuance  of  the  verdicts.     The  court  below  granted  the  ap- 
plications, and  from  those  orders  these  appeals  are  taken.     Its 
decision  was  based  entirely,  as  appears  from  the  opinion  printed 
in  the  case,  upon  the  decision  of  this  court  in  the  equity  case 
above  cited.     And  the  counsel  for  the  appellants  have  shown, 
that  it  does  not  follow  from  that  decision  that  the  action  of  the 
court  below,  now  under  consideration,  was  proper.    There  is  un- 
doubtedly a  wide  difference  Ijetween  a  court  of  equity  sayinr; 
that  it  will  not  lend  its  aid  to  enforce  a  legal  right,  where  there 
are  equitable  reasons  for  its  refusal,  and  a  court  of  law  saying   ^--^'^"'"^"■^    «> 
that  a  party  M'ho  recovers  in  an  action  at  law  shall  not  have  ^^^^p^^^^-*-^ 
such  a  judgment  as  the  law  directs.  In  the  one  case  the  court  has  c^>-><i>c->v.>-5^-^ 
a  discretion,  based  upon  those  equitable  principles  and  consider-  »-»  ^  /vx-^ 
ations  upon  which  the  system  of  equitable  jurisprudence  was  *»v»-v^03-A-  j 
built  up,  which  entitles  it  to  refuse  its  peculiar  relief  in  cases   o»--<^^  *\q^ 
where  it  would  cause  oppression  and  injustice.     But  a  court  of     V-©~-a  -vr-^r^Jt 
Jaw  has  no  discretion,  resting  upon  such  considerations,  to  re- 
fuse  to  any  party  such  a  judgment  as  tne  law  provides  for,  in 
an  action  wholly  at  law.    If,  therefore,  these  actions,  in  the  form 
which  they  finally  assumed,  are  to  be  regarded,  as  the  court  be- 
low intimated,  as  actions  for  a    private    nuisance,    within    the 
meaning  of  section  1,  chapter  144,  R.  S.,  then  I  do  not  think  it 
would  follow  that  the  plaintiffs  were  not  entitled  tn  tVip  judg- 
ment there  provided  for^  because  this  court  had  decided,  that. 
for  the  reasons  already  mentioned,  a  court  of  eanity  would  nn|. 
interfere  by  injunction  to  prevent  the  reconstruction  of  the  dam 
after  it  had  been  carried  out  by  a  flood. 

But  I  do  not  think  these  actions  should  be  regarded  as  actions 
for  a  private  nuisance,  within  the  meaning  of  that  section.  The 
injury  complained  of  is  undoubtedly  a  private  nuisance,  and 
the  plaintiffs  might  have  proceeded  for  the  purpose  of  abating 
the  nuisance,  if  they  had  seen  fit.  But  they  were  not  bound  to 
do  so.  They  were  at  liberty  to  bring  their  actions  merely  for 
the  recovery  of  the  damages ;  and  this,  I  think,  is  what  they  have 


464 


THE  COMPLAINT. 


[Chap.  III. 


done.  It  is  true,  the  facts  sho\vin<;  the  injury  to  the  land  are 
all  stated,  and  with  sufficient  particularity  to  warrant  a  prayer 
for  the  abatement  of  the  dam  as  a  nuisance.  But  the  complaints 
did  not  contain  any  such  prayer.  No  such  relief  was  asked.  And 
under  the  present  system  of  practice,  which  requires  the  plain- 
tiff to  state  in  his  complaint  the  relief  he  desires,  I  do  not  think 
an  action  should  be  regarded  as  an  action  to  abate  a  nuisance, 
unless  that  relief  is  demanded  in  the  complaint.  This  court  has 
decided,  in  Gillett  v.  Treganza,  13  Wis.  472,  that  where  the  facts 
stnt.f'd  in  a  complaint  mi.uht  sustainsgvpral  flifferent  IvJuds  oj 
action,  the  praver  for  relief  will  be  held  to  determine  the  char- 
acter of  the~actjo^  And  the  decision  is  applicable  here.  The 
plaintiffs  asked  only  for  damages,  and  that  makes  the  actions, 
actions  for  damages  only,  although,  upon  the  same  facts,  the 
plaintiffs  might  have  been  warranted  in  asking  to  abate  the 
dam. 

In  Abbott's  Forms,  vol.  1^  p.  474,  a  form  for  a  complaint  in 
such  an  action  is  given,  where  such  relief  is  expressly  asked. 
Such  a  prayer  was  in  the  complaint  in  Cromwell  v.  Lowe,  14 
Ind.  234,  though  under  their  statute  the  court  had  a  discretion 
to  abate  or  not.  But,  without  any  express  authority  upon  the 
point,  our  statute,  requiring  the  plaintiff  to  state  what  relief  he 
desires,  is  amply  sufficient  to  show  that,  if  he  does  not  ask  to 
have  the  dam  abated,  the  action  should  not  be  considered  as 
brought  for  that  purpose. 

An  action  for  a  private  nuisance,  within  the  meaning  of  the 
section  of  the  statute  above  referred  to,  should  be  held  to  be  only 
an  action  the  object  of  which  is  to  abate  the  nuisance.  That 
such  was  its  intent  is  clear  from  the  fact  that  it  provides  that, 
in  such  cases,  the  judgment  shall  be  that  the  nuisance  be  abated. 
And,  under  the  present  practice,  an  action  cannot  be  consid- 
ered of  that  character  unless  that  relief  is  demanded  in  the  com- 
plaint. Where  such  relief  is  sought,  it  is  usually  by  far  the 
most  important  object  of  the  suit ;  and  where  the  plaintiff  omits 
to  ask  for  any  such  relief,  the  defendant  has  a  right  to  assume 
that  the  action  is  not  an  action  for  a  nuisance  within  the  mean- 
ing of  that  statute. 

The  justice  and  propriety  of  this  ruling  seem  obvious,  and 
this  case  fully  illustrates  it.  The  complaint  asking  nothing  but 
damages,  the  defendants  were  thrown  off  their  guard.  They 
justly  concluded  that  they  were  not  called  on  to  defend  against 


^b^<-4L  W'^'^^-*!  v»-^A:^^  X^   '^C*^'^'^^  ^^"^ 


..  --  - 


Sec.  2.]  cobb  v.  smith.  465 

any  other  claim.     They  therefore  neglected  to  set  forth  in  their 
answer  such  facts  as  might  have  entitled  them  to  the  affirmative 
Interference  of  a  court  of  equity  to  prevent  the  plaintiffs  from, 
enforcing  their  legal  right  to  the  abatement  of    the    nuisance. 
That  upon  a  sufficiently  strong  case,  a  court  of  equity  ought  so 
to  interfere^  I  have  no  doubt.    The  same  principles  which  induce 
it  to  refuse  its  own  aid  to  the  party  whose  land  is  flowed,  where 
he  has  acquiesced  for  a  long  time  in  the  maintenance  of  the  dam, 
and  in  the  erection  of  valuable  mills  and  improvements  depend- 
ent upon  it,  ought  to  induce  it  to  give  affirmative  assistance  to 
the  other  party,  to  prevent  the  assertion  of  a  strict  legal  right,  of 
trifling  value,  to  the  destruction  of  great  and  valuable  interests 
that  have  grown  up  on  the    faith   of   such    acquiescence.     Un- 
doubtedly the  court  should  attach  just  conditions  to  such  relief, 
and  should  compel  the  payment  of  all  that  the  land-owner  ought 
in  equity  to  receive.     But  having  done  this,  it  should  prevent 
him  from  asserting  his  legal  right  to  abate  the  dam  at  the  ex- 
pense of  such  injustice  and  hardship  to  others.     The  cases  es- 
tablishing the  principles  upon  which   courts    of    equity   ^^^^^^t^^  ,),ja^   V^ 
their  own  aid  in  such  instances,  are  cited  in  Sheldon  v.  I^ock- f^^^^-^^^j^^^ 
well,  9  Wis.  166.    And  the  following  sustain  the  conclusion  that  v      ^^^  c«vv^ 
the  court  would  not  only  refuse  its  own  aid,  but  would  affirma-  4_,J^.^  a/^-v-J 
tively  interfere  to  prevent  the  party  from  asserting  his  strict  ^j^^^Si;;;:;:^^*^ 
rights  at  law,  in  a  proper  case:    Sprague  v.  Steere,  1  R.  I.  259;  v^,<>-o ji>>vh- 
Trenton  Banking  Co.  v.  McKelway,  4  Halst.  Ch.  84.     The  case -*A-*j.^ -w>^ 
from  Rhode  Island  was  itself  a  case  of  the  former  class,  but  it  V-#v^*4l  o^^ 
refers  approvingly  to  several  old  cases  of  the  latter.    Under  the  «-«%*rf<5c  a \< 
-old  practice,  the  mode  of  obtaining  this  relief  would  have  been  ^   x./v>j.j^ 
ty  a  separate  equitable  suit.    Under  the  present,  it  could  be  ob-    j;^ 
tained  in  the  suit  at  law,  but  only  by  setting  up  the  facts  in  the 
answer,  and  asking  it  as  affirmative  relief.    Hence  the  necessity 
Ct  indicating  in  the  complaint  the  kind  of  relief  sought  by  the 
plaintiff,  that  the  defendant  may  have  a  fair  opportunity  to  de- 
fend against  it,  or  any  part  of  it. 

I  attach  no  importance  to  the  fact  that  these  complaints  con-  « j^j^.^^_^^^  k. 
tained  the  old  equitable  prayer  for  general  relief.  Such  a  prayer  eO^,^,i5tS2a]S 
is  inappropriate  to  a  complaint  in  an  action  at  law,  and  does  not  -vtv^k.^j— Jt  V>- 
tend  in  any  manner  to  supply  the  place  of  a  specific  demand  f-^^xjoc*.^^^ 
of  particular  relief,  which,  if  sought,  gives  character  to  the  whole 
action. 

If  these  complaints  had  asked  for  this  relief,  and  the  defend- 
30 


466  THE  COMPLAINT.  [ClIAP.  III. 

ants  had  nesilected  to  plead  and  present  any  equitable  defense 
they  might  have  had,  they  could  not  have  been  relieved  on  these 
motions.  The  judgments  would  then  have  been  proper.  But  as 
they  did  not  ask  for  it,  and  as  the  actions,  for  that  reason,  could 
not  fairly  be  regarded  as  being  brought  to  abate  the  nui.sance, 
the  defendants  were  not  called  on  to  defend  against  that  relief, 
and  that  part  of  the  judgments  may  well  be  regarded  as  a  sur- 
prise upon  them,  from  which  they  were  entitled  to  relief  on  mo- 
tion. 

For  these  reasons,  I  think  the  orders  appealed  from  should  bo 
affirmed. 

By  the  Court :     Orders  affirmed.         \xr^  6SX  —  -^^  o>-r«JUr 


"^ 


tA*^  "YUAAAOMaCt 


GRAND  ISLAND  SAVINGS  &  LOAN  ASS'N  v.  MOORE. 

40  Neb.,  686.     [1894.] 

Appeal  from  a  deficiency  judgment  rendered  in  an  action  to 
foreclose  a  mortgage. 

Irvine,  C.     *     *     *     The  second  objection  is  based  upon  the 
failure  of  the  petition  to  pray  for  a  deficiency  judgment.     The 
*')^'^*''*^     prayer  was  "for  a  finding  of  the  amount  due  on  said  claim,  and 
■'^^^Nfv  foj.  a  decree  of  foreclosure,  an  order  of  sale  of  the  said  property 

'■»\  ^'^'~-  *~^'  to  satisfy  the  said  claim,  and  for  such  other  and  further  relief 
^  \y»-  l^;^*-^-^-  as  is  just  and  equitable. ' '  Whether  a  deficiency  judgment  can 
■~»-j»-«^^  be  allowed  under  a  prayer  for  general  relief  is  a  question  not 

^-^-^liyi^i     free  from  doubt,  and  its  solution  is    rendered    more    difficult, 
jv^-^-»v'^jA7       rather  than  aided,  by  such  authorities  as  we  have  been  able  to 
*^vJy«^-«-*-*A*-c^  find.     It  would  seem  that  under  the  general  rule  that  a  prayer 
:^.«p/v^s.k>v»dr'>   for  general  relief  permits  the  allowance  of  any  relief  applicable 
to  the  case,  and  not  inconsistent  Avith  the  particular  relief  de- 
manded, such  a  prayer  would  be  sufficient  to  authorize  the  ren- 
.  dition  of  a  judgment  for  the  deficiency.     The  courts  have,  how- 
ever*, exhibited  a  tendency  to  depart  from  this  general  rule  in 
'  such  cases,  but  their  decisions  are  largely  based  upon  statutes 
more  or  less  differing  from  those  of  this  state.     Counsel  contend 
that  the  case  of  Brownlee  v.  Davidson,  28  Neb.  785,  45  N.  W. 
51,  implies  that  no  special  prayer  for  a  deficiency  judgment  is 
necessary.     We  cannot  see,  in  that  case,  any  such  implication. 
On  the  contrary,  it  does  appear,  clearly,  from  that  case,  that  at 


Sec.  2.]  savings  association  v.  moore.  467 

some  stage  of  the  proceedings  the  plaintiff  miLst  ask  for  a  defi- 
ciency judgment  before  error  can  be  predicated  upon  failure  to 
allow  it.  This  is  the  only  authority  cited  in  the  briefs.  We  have, 
however,  pursued  the  investigation  somewhat  further.  In  Gid- 
dings  V.  Barney,  31  Ohio  St.  80,  under  a  similar  prayer,  the 
court  discussed  a  statute  which  it  was  claimed  permitted  a  mort- 
gagee in  one  action  to  foreclose  his  mortgage,  and  obtain  a  per- 
sonal judgment  upon  the  debt.  It  was  held  that  the  personal 
judgment  could  not  be  allowed  under  a  prayer  similar  to  that  in 
the  case  under  consideration,  but  the  court  disclaimed  the  inten- 
tion to  deny  the  power  of  awarding  execution  for  a  balance  due 
after  the  property  was  exhausted.  The  inference  is  that  such  re- 
lief could  be  had.  In  Foote  v.  Sprague,  13  Kan.  155,  the  peti- 
tion asked  for  a  foreclosure  and  sale,  and  that  execution  should 
be  issued  for  the  balance.  A  personal  judgment  was  rendered. 
The  supreme  court  held  that,  where  the  prayer  was  no  more  de- 
fective than  in  that  case,  it  might  be  amended  at  any  time,  and, 
upon  petition  in  error,  would  be  considered  as  amended.  In 
WLsconsin  the  statute  permits  a  deficiency  judgment  only  where 
it  is  demanded.  In  Olinger  v.  Liddle,  55  Wis.  621,  13  N.  W. 
703,  a  prayer  for  execution  for  any  balance  Avas  held  sufficient 
to  meet  the  requirement  of  the  statute.  In  Kentucky,  under  a 
prayer  for  foreclosure  and  general  relief,  it  was  held,  in  Hans- 
ford V.  Holdman,  14  Bush,  210,  that  the  rendition  of  a  deficiency 
judgment  was  erroneous,  where  the  defendant  made  no  defense 
to  the  action.  But  this  was  because  a  statute  provided  that  if  no 
defense  be  made  the  plaintiff  cannot  have  judgment  for  any  re- 
lief not  specifically  demanded.  This  principle  would  seem  .quite 
clear.  In  New  York  the  statute  is  similar  to  that  in  Kentucky, 
and  the  cases  in  that  state  usually  cited  as  holding  that  a  special 
prayer  is  necessary  are  based  upon  the  statute,  and  intimate  that 
where  a  defense  is  made  the  rule  would  be  different.  Simonson 
V.  Blake,  20  How.  Pr.  484;  Peck  v.  Railway  Co.,  85  N.  Y.  246. 
The  result  of  these  cases  seems  about  as  follows:  In  Ohio,  we 
have  a  dictum  that  the  general  prayer  is  sufficient;  in  Wiscon- 
sin, a  liberal  construction  given  to  a  special  prayer,  to  make  it 
conform  with  the  statute;  in  Kansas,  an  implication  that  a  spe- 
cial praj^er  is  necessary,  but  defective  prayer  treated  as  amended 
so  as  to  supply  the  defect;  in  New  York  and  Kentucky,  an  in- 
ference that  the  general  prayer  is  sufficient,  where  the  defend- 
ant, by  making  a  defense,  has  deprived  himself  of  the  protection 


468  THE  COMPLAINT.  [CHAP.  III. 

"f^'M*.,  .*>-^  of  a  statute  demanding  a  different  rule.  We  have  not  in  this 
»-»■  >Ji-aV*iLL,  state  any  statute  similar  to  those  of  Wisconsin,  New  York,  or 
^'^^-'^'^^-^  \3^ft^  Kentucky.  The  protection  afforded  defendants  in  default  by 
'^<y^>*^'-'*^^  ^  those  statutes  is  partially  given  here  by  section  64  of  the  Code 
^^^^l^^^'^^  of  Civil  Procedure,  providing  that,  in  an  action  for  the  recovery 
:  'vAs.  «iv..ev^L-*.  of  money  only,  there  shall  be  indorsed  on  the  writ  the  amount 
■^\Aj^«k-»V.  for  which  judgment  will  be  taken,  if  the  defendant  fail  to  an- 
^d-tx^vwa-^^i^,  swer,  and  that,  if  the  defendant  fail  to  appear,  judgment  shall 
xA/v.- «^.vv«M*.^jj(j^  be  taken  for  a  larger  amount,  and  the  costs.  In  Jones  v. 
•'^V'  N"ll,  9  Neb.  57,  1  N.  W.  867,  it  was  held  that  a  suit  to  foreclose 
^*"^*^^^.  /  ^:^  a  mortgage  was  not  an  action  for  the  recovery  of  money  only. 
*^^^"*^"^'''''^^  .Still,  we  are  not  required  to  decide  what  rights  the  defendant 
.^...sj^  1^^*  would  have,  on  failure  to  appear  in  such  a  case,  if  there  was  no 
jj^  ^>i>v.^^^»M-indorsemcnt  upon  the  writ.  The  record  contains  neither  the 
^^vx.  \A\  o^*ii-«vv  process,  the  answer,  nor  the  decree.  If  the  appearance  of  de- 
^^^^  ■*^'^A?**'**(,fendant  was  necessary  to  give  the  court  power  to  act,  it  must  be 
presumed  that  there  was  such  appearance.  It  would  seem,  there- 
i^*-*^-^^  fore,  that  the  prayer  was  sufficient  to  justify  the  rendition  of  the 

XrA^ o^^/>.ay^     deficiency  judgment;  but,  if  not,  then  we  are  quite  clear  that_ 
^^  **^^     it  might  be  amended,  with  notice  to  the  defendant,  so  as  to  ask 
O:.  o^  oo-v-     fo^"  the  judgment,  and  the  motion  for  the  judgment^  espeniallY 
^^.^^^jt^,^^  where  it  is  couched  in  such  lanpnagp  ns  it  was  here,  should  be 

,^^,^_^^^  .  treated  as  an  amendmgiiL  The  record  shows  affirmatively  that 
'  -  ' '  notice  of  the  motion  was  served  upon  the  defendant,  and  that 
he  appeared  in  response  thereto.  The  amendment  was  also  in 
time.  It  came  before  the  judgment  was  rendered,  and  no  at- 
tempt was  made  to  take  advantage  of  any  finding  affecting  the 
right  to  the  judgment  which  may  have  been  contained  in  the 
original  decree.  The  right  to  the  judgment  was  tried  upon  its 
merits,  subsequent  to  the  motion,  and  after  defendant's  appear- 
ance to  the  motion.     *     *     * 

Judgment  affirmed. 

^  ^     NEWHAM  v.  KENTON. 

79  3Io.,  383.      [1883.] 

Philips,  C.  This  is  a  bill  in  equity.  The  petition  states  that 
plaintiffs  are  husband  and  wife;  that  the  wife  contracted  with 
the  defendant  Kenton,  to  the  effect  that,  as  her  agent  and  trus- 
tee, he  would  purchase  certain  described  real  estate  in  the  town. 


Sec.  2.]  newham  v.  kenton.  469 

of  Norborne,  in  Carroll  county;  that  she  furnished  the  money, 
and  the  title  was  to  be  taken  in  the  name  of  the  defendant,  and 
immediately  thereafter  he  should  convey  to  her ;  that  the  money 
was  accordingly  furnished,  the  purchase  made  by  defendant  and 
the  title  conveyed  to  him  by  the  vendor.  The  petition  then 
averred  that  soon  after  said  purchase  the  plaintiff,  with  the  con- 
sent of  defendant,  entered  into  the  possession  and  enjoyment  of 
the  premises,  and  had  ever  since  so  held  the  same,  making  large 
and  lasting  improvements  thereon,  such  as  erecting  a  house,  etc., 
at  the  outlay  of  about  $1,000.  It  is  averred  that  the  defendant, 
though  often  requested  thereto,  has  wholly  failed,  refused  and 
neglected  to  make  conveyance  to  the  plaintiff  jMargaret,  as  he 
had  agreed  to  do,  and  as  in  equity,  etc.,  he  was  bound  to  do. 
The  prayer  of  the  petition  is  for  a  decree  requiring  the  defend- 
ant to  execute  to  her  a  good  and  sufficient  deed  vesting  in  her 
the  right  and  title  so  acquired  by  defendant  and  for  proper  re- 
lief.   The  answer  is  a  general  denial. 

The  bill  of  exceptions  recites  that :  * '  The  plaintiffs,  to  sustain 
the  issues  on  their  part,  offered  evidence  tending  to  prove  the 
facts  set  forth  in  the  petition.  The  defendant,  to  sustain  the 
issues  upon  his  part,  offered  evidence  to  sustain  the  allegations 
pleaded  in  his  said  answer.    This  was  all  the  evidence  offered." 

Upon  this  state  of  the  case  the  court  rendered  the  following 

decree : 

''Now  at  this  day  come  the  parties,  by  attorneys  and  in  per- 
son, and  each  party  being  ready  for  trial  on  the  pleadings,  and 
the  court,  after  hearing  the  testimony  for  plaintiffs  and  defend- 
ant, and  the  argument  of  counsel,  finds  the  facts  to  be  as  fol- 
lows :  That  on  or  about  the  17th  day  of  January,  1876,  the  de- 
fendant, under  and  by  virtue  of  a  verbal  contract,  entered  into 
between  him  and  the  plaintiff  Margaret  P.  Newham,  purchased 
of  one  M.  C.  Huff  and  wife  the  real  estate  described  in  the  pe- 
tition for  and  on  account  of  the  plaintiff  at  and  for  the  sum  of 
$230;  that  by  the  contract  and  agreement  between  the  said  M. 
P.  Newham  and  defendant,  the  deed  to  said  real  estate  was  made 
to  defendant  as  trustee  for  the  plaintiff,  and  that  said  deed 
has  been  duly  made  and  recorded  in  Carroll  county, 
but  that  said  deed  does  not  express  said  trust;  that 
shortly  after  said  purchase,  as  aforesaid,  a  further 
contract  and  agreement  was  made  and  entered  into  be- 
tween   plaintiff   M.    P.    Newham    and   the    defendant    to    this 


470  THE  COMPLAINT.  [ClIAP.  III. 

effect:  That  plaintiff,  M,  P.  Newham  and  the  defendant  would 
erect  and  build  a  two  story  frame  storehouse,  of  the  kind  and 
character  mentioned  in  the  petition,  on  said  lot ;  that  each  party 
was  to  bear  half  of  the  cost  of  the  building  and  the  defendant 
to  pay  one  half  of  the  purchase  money  for  said  lot,  and  each  to 
be  and  become  equal  owners  of  said  house  and  lot.  The  plaintiff, 
M.  P.  Newham,  in  the  summer  and  fall  of  1876,  built  and  erected 
said  storehouse  at  a  cost  of  $800;  that  defendant  Kenton  fur- 
nished labor  and  material  for  said  building  to  the  amount  of 
$100  only;  that  plaintiff  has  held  and  occupied  said  building 
from  some  time  in  the  fall  of  1876  up  to  the  present  time;  that 
defendant  has  failed  and  refused  to  carry  out  said  contract 
either  by  executing  a  deed  to  plaintiff  for  an  undivided  half  of 
said  lot  or  by  paying  his  half  of  the  balance  of  the  cost  of  said 
building;  and  that  the  balance  due  from  defendant  to  plaintitl' 
M.  P.  Newham  on  half  the  cost  of  lot  and  building,  after  a  full 
settlement  of  lot  and  house  transaction,  Ls  the  sum  of  $339  up  to 
date.  It  is,  therefore,  ordered,  adjudged  and  decreed  by  the 
court  that  the  said  defendant,  Thomas  Kenton,  execute  and  de- 
liver to  plaintiff'  a  good  and  sufficient  deed  conveying  to  said 
plaintiff,  Margaret  P.  Newham,  an  undivided  one  half  of  said 
real  estate,  to-wit:  Twenty-five  feet  off  the  south  end  of  lots 
numbered  9,  10,  11  and  12,  in  block  number  16,  in  the  town  of 
Norborne,  Carroll  county,  Missouri,  and  that,  in  default  of  the 
execution  of  said  deed,  all  the  right  and  title  of  the  defendant, 
Thomas  Kenton,  in  and  to  said  undivided  one-half  of  said  real 
estate  be  divested,  and  vested  in  plaintiff,  IMargaret  P.  New- 
ham. And  it  is  further  ordered  and  adjudged  that  plaintiff',  M. 
P.  Newham,  have  and  recover  of  the  defendant,  Thomas  Kenton, 
judgment  for  the  sum  of  $339,  together  with  the  costs  of  this 

suit,  which  are  taxed  at  the  sum  of  $ ,  and  that  execution 

issue  therefor." 

From  this  decree,  after  an  ineffectual  motion  for  a  new  trial 
and  in  arrest,  the  defendant  has  appealed.  The  question  to  be 
decided  is,  as  to  the  propriety  and  right  of  this  decree. 

It  was  ever  the  rule  in  equity  to  set  out  with  particularity  and 
the  utmost  circumspection  as  to  truth,  the  facts  forming  the 
gravamen  of  the  complaint.  The  bill  being  addressed  to  "the 
forum  of  conscience,"  the  whole  facts  should  be  disclosed  that 
the  chancellor  might  ex  a?quo  et  bono  make  decree.  The  code  of 
practice  applicable  alike  to  actions  at  law  and  in  equity  requires 


Sec.  2.]  newham  v.  kenton.  471 

"a  plain  and  concise  statement  of  facts  constituting  the  cause  of 
action.''  The  facts  thus  stated  constitute  the  cause  of  action  and 
none  other.  It  is  a  great  misapprehension  to  suppose  that  one 
cause  of  action  can  be  stated  in  a  bill  in  equity,  and  by  scrae 
sort  of  comprehensive  flexibility  of  chancery  jurisdiction  relief: 
can  be  administered  growing  out  of  a  state  of  facts  not  embraced 
within  the  facts  pleaded. 

The  rule  that  under  the  general  prayer  for  relief  a  party  may 
have  any  relief  to  which  he  may  show  himself  entitled,  is  limited 
to  relief  founded  on  and  consistent  with  the  facts  set  out  in  thT 
bill,  and  not  such  as  may  be  proven  at  the  hearing.  McXair  v.  -Bid-" 
die,  8  Mo.,  257;  Wilkin  v.  Wilkin,  1  John.  Ch.,  111.  So  Napton,  J., 
in  Mead  v.  Knox,  12  Mo.,  287,  said:    *'It  is  not  denied  that  a 
court  may  grant,  under  the  prayer  for  general  relief,  a  relief 
different  from  the  specific  relief  sought;  but  the  decree  must  be 
warranted  by   the  allegations   and  proofs.     The  testimony  of 
Mead  (the  witness)  put  a  new  face  upon  the  transaction— and  if 
there  was  a  fraudulent  combination  between  him  and  the  defend- 
ant, it  was  proper  that  the  bill  should  be  modified  to  suit  this 
altered  state  of  things,  but  this  was  not  asked,  and  the  least 
which  the  court  could  do  was  to  dismiss  the  bill  without  preju- 
dice."   In  Duncan  v.  Fisher,  18  ^lo.,  404,  Gamble,  J.,  aptly  said: 
*'The  change  made  in  our  practicedoeg  not  relieve  the  parties 
fromTET necessity  or"establisgjng_by  evidence  the_c_ase  made  in. 
flieir  respeetive_pTeadmgs,  or  authorize  a  verdict  on  evidence' 
^^dneh  shoTvs  a  different  right  of  recoisja^.''    in  Irwin  v.  Chiles, 
28'MoT; "57^78,  Kiehardson,  J.,  declared  that  "a  party  is  not 
entitled  to  a  judgment  on  a  finding  of  facts  different  from  any 
theory  of  the  case  set  up  in  the  petition  or  answer."    In  Harris 
V.  Railroad  Co.,  37  Mo.,  310,  Wagner,  J.,  with  emphasis,  said : 
"The  statute  permits  a  party  to  amend  his  petition  after  his 
evidence  has  been  given,  to  make  it  conform  to  the  proofs ;  but 
no  such  thing  Avas  attempted  in  this  case.    It  then  presents  the 
singular  spectacle  of  declaring  for  one  cause  of  action  and  ob- 
taining judgment   for   another  and  different  cause.        Such   a 
course  of  procedure  is  destructive  of  all  certainty  in  pleading, 
and  can  neither  be  tolerated  nor  encouraged." 

Xow,  w-hat  was  the  issue  tendered  by  the  petition  and  answer^ 
in  the  ease  at  bar?    It  was  simply  and  singly  w-hether  the"plain~ 
l[fl  ftirnished  the  purchase  money  for  the  lot  in  question  under 
the  arrnn:-'ement  alleged,  that  defendant  should  receive  the  title. 


A»J^^^ 


472  THE  COMPLAINT.  [ChAP.  Ill, 

in  trust,  and  whether  he  Imr]  vio1;itof1  his  ohlJL'-afion  in  that 
respect  to  convey  to  plaintiff.  The  evidence  offered,  so  recites 
the  bill  of  exceptions,  tended  to  maintain  the  issues  respectively 
made.  And  yet  on  this  state  of  the  pleadings  and  proofs  the 
court  made  the  decree  herein  quoted.  The  decree  is  based  on  a 
new_and  supplemental  contract  not  embraced  nor  in  the  re- 
motest degree  referred  to  in  the  petition.  Such  a  decree  cannot 
be  defended  either  on  authority  or  principle.  In  principle  it  is 
little,  if  at  all,  distinguishable  from  White  v.  Rush,  58  Mo.,  105, 
which  was  an  action  of  ejectment.  The  answer  put  in  issue  the 
validity  of  the  title  under  which  plaintiff  claimed,  because  there 
was  no  notice  of  the  sale  under  the  deed  of  trust  through  which 
the  title  came.  Issue  was  taken  on  this  new  matter.  The  court 
was  not  content  with  finding  the  issues  for  defendant,  but  went 
further  and  adjusted  the  equities  between  the  parties  touching 
taxes,  etc.,  which  had  accrued  on  the  land,  and  rendered  judg- 
ment for  them.  This  court  held  there  was  nothing  in  the  plead- 
ings justifying  the  judgment,  and  it  was,  therefore,  error. 
.j,^,.,,^-  «w  How  the  evidence,  on  which  the  decree  under  review  purports 

-^d^My^&j^   to  be  based,  got  before  the  court,  is  not  apparent.     It  was  not^ 
J  V<i-o^      competent  under  the  general  denial  for  the  defendant  to  intro- 
k.  >^<^  duce  it.     It  was  not  an  issue  within  the  allegations  of  the  peti- 

jy^^&ni:  tKA.  tion ;  and  as  it  was  predicated  on  a  state  of  facts  supervenient, 
•^^^X^^r.'-^^-  they  constituted  new  matter  which  the  defendant  could  avail 
himself  of  only  by  pleading  .them  specifically  in  the  answer. 
Greenway  v.  James,  34  Mo.,  328;  Northrup  v.  INIiss.  V.  Ins.  Co., 
47  Mo.,  443,  444.  If  they  were  developed  in  the  progress  of  the 
trial,  and  either  party  wished  to  avail  himself  of  them,  an  appli- 
cation should  have  been  made  to  the  court  for  leave  to  amend. 
To  the  bill  thus  amended  the  defendant  would  have  the  right  to 
plead,  and  quite  possibly  other  and  important  questions  of  law 
might  arise  thereon. 

Respondents'  counsel  suggest  that  the  appellant  ought  not  to 
complain  of  the  error,  as  under  the  decree  he  obtains  a  half  in- 
terest in  the  lot  and  improvements.    But  the  court,  whilst  leav- 
ing in  him  an  undivided  interest  in  the  property,  went  further, 
and  rendered  a  judgment  in  personam  against  him  for  $339.    In 
n^^>^  ^    /  other  words,  under  a  petition  to  impress  the  legal  title  to  this 
r^  v^ .    \  property  in  defendant  with  a  trust  and  to  divest  the  legal  title 
K^  «vu»vJ  -  1  and  vest  it  in  the  cestui  que  trust,  the  court,  against  his  prayer 
I  <jv.^/j^VvJi  and  will,  decreed  that  defendant  have  half  the  title,  but  reouired 


Sec.  2.]  newham  v.  kenton,  473 

him  to  pay  plaintiff  a  money  consideration  therefor  recoverahle 
Ir om  his  estate  generally.  This  is  a  marked  exhibition  of  the 
expansiye  powers  of  a  court  of  eauitv:  and  I  fear  would  be  a 
dangerous  precedent  to  establish.  It  would  certainly  be  a  case 
of  ''first  impression,"  which  would  eyinee  some  unjudicial 
temerity  to  yenture. 

The  judgment  of  the  circuit  court  is  reyersed  and  the  cause  is 
remanded.    All  concur. 


V"  <^ 


PHARIS  y.  GERE. 
31  Hun,  443.     [1884.] 

Appeal  from  an  order  made  at  the  Onondaga  Circuit  and 
Special  Term,  denying  the  plaintiff's  motion  to  amend  the  com- 
plaint herein  after  yerdict,  by  increasing  the  claim  for  damages 
therein  to  correspond  with  the  yerdict,  and  refusing  to  allow  the 
plaintiff  to  treble  the  damages  found  by  the  jury,  except  upon 
the  condition  that  he  remit  the  excess  beyond  the  amount  of  the 
yerdict  and  interest  thereon  from  the  time  it  was  rendered. 

Smith,  P.  J. :    It  has  long  been  settled  that  the  court  will  not 
amend  the  complaint  after  yerdict  by  increasing  the  amount  of 
damages  for  Avhich  judgment  is  demanded,  without  setting  aside 
the  yerdict  and  granting  a  new  trial,  to  giye  the  defendant  an 
opportunity  to  defend  against  the  enlarged  claim.    Accordingly 
in  all  actions  for  the  recoyery  of  damages,  whether  sounding  in  C^»v/vwvaX« 
tort  or  on  contract,  the  sum  in  the  conclusion  of  the  declaration  Slxx^vaji^  ^ 
or  complaint  must  be  sufficient  to  coyer  the  real  demand,  and  it  a~^e>IT^-^ 
would  be  unjust  to  allow  it  to  be  enlarged  after  yerdict  without  LJL\  C.- 

granting  a  new  trial,  as  the  defendant  may  haye  gone  to  trial    V.  g »^ 

relying  that  no  more  damages  than  the  sum  claimed  could  be  re-  ^ Jc:^-^  a 
coyered  against  him.  (Pilford's  case,  10  Co.,  117  A,  ab.;  Tom-  -o-s.^^^^^.^.^ 
linson  y.  Blacksmith,  7  T.  R.,  128  1  Ch.  PI.  (14th  Am.  Ed.), 
339,  418;  Curtis  y.  Lawrence,  17  Johns.,  Ill;  Dox  y.  Dey,  3 
Wend.,  356 ;  Fish  y.  Dodge,  4  Den.,  311 ;  Corning  y.  Corning,  2 
Seld.,  97;  Coulter  y.  Express  Company,  5  Lans.,  67;  Decker  y. 
Parsons,  11  Hun,  295.)  The  code  has  not  changed  the  rule. 
(Corning  y.  Corning;  Decker  y.  Parsons,  supra.) 

The  complaint  in  this  action  contained  two  counts;  the  first 
charged  a  forcible  entry  and  detainer  upon  lands  of  the  plain- 


474  TPIE  COMPLAINT.  [ClIM'.  HI. 

tiff  to  his  damage  of  $3,000,  and  alleged  that  thereby  "the  de- 
fendant by  force  of  section  four  of  the  statute  of  'trespass  on 
lands'  forfeited  and  became  liable  to  pay  treble  the  amount  of 
said  damages,"  and  the  same  count  concluded  by  a  demand  of 
judgment  for  the  sum  of  $3,000  besides  costs.  The  second  count 
alleged  a  forcible  detainer  of  the  same  lands  to  the  plaintiff's 
damage  of  $3,000.  The  complaint  concluded  as  follows: 
""Wherefore,  on  account  of  the  foregoing  premises,  said  plaintiff 
demands  judgment  against  said  defendant  in  the  sum  of  $3,000, 
besides  costs  of  this  action."  At  the  trial  the  court  instructed 
the  jury  that  they  had  nothing  to  do  with  the  question  of  treble 
damages,  but  that  was  for  the  court  alone,  and  they  were  only 
to  find  the  actual  damages,  if  any,  sustained  by  the  plaintiff. 
The  jury  by  their  verdict  found,  under  the  first  count,  that 
there  was  a  forcible  detainer,  and  found  for  the  plaintiff  in  the 
sum  of  $2250.  Thereupon  the  plaintiff  moved  to  amend  the 
complaint  by  increasing  the  amount  claimed  in  the  prayer 
thereof  from  $3,000  to  $7,000,  and  that  the  amount  of  damages 
found  by  the  jury  be  trebled.  The  court  denied  the  motion  to 
amend,  but  gave  the  plaintiff  leave  to  enter  an  order  multiplying 
the  amount  of  damages  found  by  the  jury  by  three,  upon  his 
filing  a  stipulation  remitting  all  of  said  sum  so  resulting  in 
excess  of  $3,000  and  interest  thereon  from  the  date  of  the  ver- 
dict, and  to  enter  a  judgment  for  said  sum  of  $3,000  with  inter- 
est, and  no  more. 

The  order  was  strictly  in  accordance  with  the  rule  and  prac- 
tice of  the  court  above  stated.  The  complaint  claimed  only 
$3,000  damages.  The  fact  that  the  first  count  alleged  that  the 
defendant  had  become  liable  to  pay  treble  damages,  did  not  en- 
large the  claim  for  damages  made  at  the  conclusion  of  that  count 
and  at  the  conclusion  of  the  complaint.  The  plaintiff  having 
limited  his  claim  for  dam.aaes  to  the  sum  of  $3,000^  could  not, 
take  judgment  for  any  greater  sum,  either  as  single  or  treble 
damages. 

The  motion  to  amend  was  properly  denied.  So  far  as  appears, 
the  plaintiff  asked  to  be  allowed  to  amend  unconditionally  and 
not  upon  the  usual  terms  of  paying  costs  and  taking  a  new  trial. 

The  order  should  be  affirmed,  with  ten  dollars  costs  and  dis- 
bursements. 


Sec.  2.]  smith  v.  smith.  475 

SMITH  V.  SMITH. 
67  Kan.,  841.     [1903.] 

Per  Curiam.     This  was  an  action  by  the  defendant  in  error 
upon  a  petition  setting  out  facts  which  would  warrant  the  enter- 
ing of  a  decree  for  a  divorce  and  alimony,  or  for  alimony  alone, 
against  the  plaintiff  in  error,  then  her  husband.    A  decree  for 
both  divorce  and  alimony  was  entered.     The  most  meritorious^;  ^  ^*^^**^*^  "^ 
question  raised  upon  the  petition  in  error  is  whether  under  a  /  ^'^v^^^ 
petition  whose  allegations  would  authorize  a  divorce,  but  the  j  X^^]^^V^ 
prayer  of  which  is  only  that  alimony  be  allowed,  a  decree  of  i  -,^v,jtv^^  \ 
divorce  should  be  granted.     It  is  well  settled  in  this  state  that  j  -y.^a-VwA.  ^j- 
the  prayer  of  the  petition  forms  no  part  of  it^  and  that  relief  1  ^^^;;;^5^'*^ 
may  be  granted  in  accordance  with  the  facts  stated  in  the  peti-     Vj,^x3»,^.  ^S 
tion  rather  than  pursuant  to  its  prayer.     Smith  v.  Kimball,  36 
Kan.,  474,  13  Pac,  801;  AValker  v.  Fleming,  37  Kan.,  171,  14 
Pac,  470.    But  it  is  here  insisted,  where  the  facts  pleaded  war- 
rant more  than  one  kind  of  relief,  that  plaintiff  should  have 
only  such  relief  as  he  prays  for ;  that  otherwise  defendant  might 
be  misled  in  the  presentation  of  his  evidence,  not  knowing  the 
ultimate  and  true  purpose  of  plaintiff  in  the  prosecution    of  the 
action.     No  effort  was  made  by  the  defendant  to  require  the  "iX.s^o  **-^ 
jTlaintiff  to  state  how  much  of  relief  she  was  desiring.    He  knew 
from  the  allegations  of  the  petition  that  she  might  obtain  a 
divorce.     He  chose  to  go  into  the  trial  without  subsequently  re- 
questing a  declaration  as  to  the  extent  of  the  relief  which  she 
desired.    Besides  this,  we  think  it  fairly  inferable  from  the  rec- 
ord that  the  defendant  was  notified  that  the  action  was  one  by 
which  the  plaintiff'  expected  to  obtain  a  divorce,  and  that  defend- 
ant conducted  his  case  upon  that  theory. 

Considerable  space  is  devoted  in  the  brief  of  plaintiff  in  error 
to  a  discussion  of  the  evidence  and  its  sufficiency.  All  of  the  evi- 
dence, with  its  claimed  contradictions,  was  before  the  trial  court. 
He  deemed  it  sufficient.     We  are  not  in  a  position  to  take  an 

opposite  view;  indeed,  we  are  inclined  to  the  same  conclusion. 
*     *     # 

The  judgment  of  the  lower  court  will  be  affirmed. 


•z^  6^N.<o~o-»>_ 


476  THE  COMPLAINT.  [CllVIV  III. 


f 


O'BRIEN  V.  FITZGERALD. 
Ii3  N.  Y.,  377.     [1894.] 


Appeal  from  supreme  court,  general  term,  first  department. 
Action  by  Miles  M.  O'Brien  and  another,  as  receivers,  against 
Lawrence  J.  Fitzgerald  and  others,  impleaded,  to  recover  dam- 
ages sustained  by  reason  of  the  negligence  of  defendants  in  the 
management  of  the  ^ladison  Square  Bank.  From  a  judgment  of 
the  general  term  (29  X.  Y.  Supp.,  975),  affirming  an  order  over- 
ruling the  demurrer  of  defendant  Fitzgerald,  he  appeals. 

FixcH,  J.    On  its  face  and  in  its  form  this  is  an  action  at  law 
to  recover  damages  for  negligence.    The  corporation,  represented 
j^  V  by  its  duly-appointed  receivers,  sues  individuals,  who  were  its 

j^^^  ^        directors,  for  such  neglect  or  wrong  in  the  performance  of  their 
^.^^^,.^,^  duties  as  resulted  in  large  losses,  and  demands  a  money  judg- 
^^  -'l^.J^-  ment  for  the  damages  sustained.     There  is  no  suggestion  that 
v^^^-ou-*     any  equitable  relief  is  essential  to  a  full  and  complete  redress, 
-•-=yi-^-      and  no  facts  are  stated  which  indicate  a  need  of  such  interven- 
tion.    It  is  not  averred  that  a  discoverj-  is  requisite  to  the  com- 
""^    -*        pleteness  of  the  remedy.    On  the  contrary',  the  acts  of  negligence 
^^'^'■'*^    are  asserted  as  fully  known,  and  capable  of  proof.     It  is  not 
'^^^^      alleged  that  an  accounting  is  necessary  to  ascertain  the  damages, 
_-^.   .  but  these  are  claimed  as  a  definite  and  fixed  sum,  resulting  di- 
^J^    -vi  rectly  from  the  negligent  acts  of  the  defendants.     It  is  not  as- 
^  *V*^'ger^^(;i  that  such  defendants  are  severallv  liable  for  separate  and 
personal  misconduct,  and  in  separate  and  different  amounts,  al- 
though that  is  a  reasonable  inference  from  the  fact  stated  in  the 
complaint,  but   it   demands  judgment   against  all   and  against 
each  for  the  full  amount  claimed.     The  circumstance  led  to  the 
interposition  of  a  demurrer  to  the  complaint,  based  upon  the 
ground  that  different  causes  of  action  affecting  different  defend- 
ants had  been  improperly  joined.     It  is  not  denied  that  the 
demurrer  is  well  taken  if  the  action  is  to  be  regarded  as  one  at 
law,  but  the  contention  is  that  it  is  an  action  in  equity,  for  the 
vindication  of  a  trust  and  the  protection  of  its  beneficiaries ;  and 
that  view  of  it  has  been  taken  by  the  courts  below  with  some 
hesitation,  and  with  a  ven,'-  oBvious  doubt  of  the  consistency  of 
our  earlier  rulings. 

I  think  those  courts  are  right  in  saying  that  the  formal  de- 
mand of  relief  with  which  the  complaint  concludes  is  not  deci- 


^EC.  2.]  O^BRIEN    V.    FITZGERALD.  477 

sive  of  the  leiral  or  equitable-  charar-ter  of  thp  ficf'mn.    We  so  held 
in  Bell  v.  Merrifield,  109  N.  Y.,  202,  16  X.  E.,  55,  saying  that 
where  an  answer  had  been  interposed,  and  facts  were  stated  in 
a  complaint  which  "show  that  it  is  of  an  equitable  nature,  and 
that  the  cause  of  action  is  simply  equitable,  we  do  not  think  a 
case  is  made  for  trial  by  jury,  under  Code,  sec.  968,  merely 
because  the  complaint  improperly  asks  for  a  money  judgment 
only.*'     That  language  clearly  and  plainly  implied  that  a  de- 
mand of  judgment  for  money  only  would  stamp  the  action  as 
one  at  law^  unless  the  facts  Dl'-ad.^d  showed  an  equitable  cause  of 
action  -simply,  and  that  the  relief  asked  vras  therefore  improperly 
confined  to  a  money  demand  merely.     In  other  words,  our  doc- 
trine was  that  the  demand  of  money  only,  on  its  face  and  primar- 
ily, characterized  the  action  as  one  at  law,  but  not  so  conclu- 
sively as  to   prevent  a  different  result  where  the  action  was 
clearly  equitable  rather  than  legal  in  its  nature,  and  purely  legal 
relief  is  improperly  demanded.    But  the  case  before  us  Ls  not  of 
that  character.     Th<-  facts  as  plnaded  show  a  perfect  cause  of   ^X#^wv. 
action  at  law  in  favor  of  the  n-oeivers.  as  representatives  of  the  oy>-*rA  « 
bank,   against  the  directors   for  misconduct,   resulting  in   loss.  "^>—  *-»^ 
The  actual  and  real  relation  between  them  and  the  corporation 
is  that  of  agents  acting  for  their  principal  (Hun  v.  Carj-,  82  N. 
Y.,  65)  :  and  the  directors  may  be  sued  at  law  for  any  damages 
caused  by  their  culpable  misfeasance  or  nonfeasance.     Within 
the  doctrine  of  the  case  cited,  the  complaint  before  us  stated  a 
perfect  cause  of  action  to  recover  damages  at  law,  and  a  proper 
and  consistent  demand  for  a  money  judgment  awarding  such 
damages^    In  the  cited  case,  the  action  was  held  to  be  of  a  legal 
character,  and  requires  the  same  ruling  now,  unless  our  doctrine 
has  changed,  or  some  valid  distinction  can  be  drawn.  In  support 
of  that  idea  the  case  of  Brinckerhoff  v.  Bostwick,  105  X.  Y.,  567, 
12  X.  E.,  58,  is  pressed  upon  our  attention  as  indicating  that  the 
present  action  must  be  regarded  as  of  an  equitable  character.  But 
there  is  a  wide  and  vital  difference  between  the  two  cases.     la 
this  the  action  is  by  the  corporation  against  its  delinquent  direc- 
tors ;  in  the  other  it  was  by  a  stockholder  who  could  not  sue  at 
law,  but  was  compelled  to  go  into  equity  to  obtain  his  relief,  and 
whose  right  of  action  was  wholly  and  purely  of  an  equitable 
character.    It  may  be,  nevertheless,  that  a  corporation  may  sue 
its  directors  in  equity  to  recover  losses  sustained,  for  there  seem 
to  be  some  cases  in  which  the  remedv  has  been  allowed.    Grant- 


x\. 


478  THE  COMPLAINT.  [ClIAP.  III. 

fc  du&T>UW^  in^'  that,  and  gcrantiiiff  also,  what  I  am  not  now  ready  to  admit 
«-  ^-^IvSi!  «s  the  law  of  this  state,  that  the  facts  pleaded  in  the  present 
^^*^  case  are  sufficient  to  support  the  action  as  an  equitable  one,  we 
are  left  by  the  pleader  in  a  doubt  which  can  only  be  solved  by 
recurring  to  the  demand  for  relief.    lie  comes  into  court  upon  a 
complaint  which,  on  the  concession  made,  pleads  an  ambiguous 
state  of  facts,  such  as  may  support  equally  an  action  at  law  or 
in  equity,  and  leaving  us  with  no  means  of  determining  which 
view  must  prevail  except  by  reference  to  the  relief  demanded. 
u  «--<J^o^      In_such  a  case  that  relief  as  asked  must  necessarily  solve  the 
jr<»x  ..^A^^    doubt,  because  there  is  no  other  solution.     The  facts  pleaded  do 
vAift^^^-     ]K)t  help  us,  for  they  fit  equally  either  a  legal  or  an  equitable 
-^-«^  ^^^'^'-^  action,  assuming  the  latter  to  be  maintainable,  and  we  are  justi- 
-*5tXi3»^,         tied  in  relying  upon  the  formal  relief  demanded  to  settle  the 
^^^    ^^^      P«int  in  dispute.    That  accords  with  our  system  of  pleading,  and 
^^^C^  "^  with  the  distinction  drawn  by  the  Code.     Where  the  action  is 
t^:**^  "^"  for  the  recovery  of  money  only,  it  is  classed  as  legal,  and  is 
triable  by  a  jury ;  and  while  we  have  held  that  we  are  not  con- 
cluded by  the  formal  demand  of  relief,  but  may  look  into  the 
facts  to  see,   nevertheless,   if  it  be  not  equitable   relief  which 
they  imperatively  require,  yet,  where  the  facts  do  not  aid  us^ 
where  they  are  .just  as  appropriate  to  a  legal  as  an  equitable 
cause  of  action,  where  they  are  ambiguous  as  to  the  sub,iect_of, 
inquiry,  we  must  be^  guided  by  the  relief  asked  in  reaching  T 
conclusion.    That,  Ilhink,  is  the  situation  here  upon  the  assump- 
tion  most  favorable  to  the  plaintiffs,— that  upon  the  facts  pleaded 
without  further  allegations,  an  equitable  action  could  be  sup- 
^  ..  -  -      -^     ported.    My  doubt  about  that  is  very  grave,  although  I  leave  the 
'^iL>s/«^^^>^  question  open.     If  there  were  further  allegations  showing  some- 
v^^otA  .      '  where  or  in  some  way  the  need  of  equitable  intervention,  the 
difficulty  would  be  removed.    The  cases  of  Glenn  v.  Lancaster,  21 
Abb.  N.  C,  272,  and  of  Hun  v.  Gary,  already  cited,  point  to  this 
conclusion,  and  are  not  overruled  or  affected  by  Brinckerhoff  v. 
Bostwiek. 

It  follows  that  the  judgment  overruling  the  demurrer  should 
be  reversed,  and  the  demurrer  sustained,  with  costs.  All  concur. 
Judgment  accordingly.  ^ 


Sec.  2.]  bailey  v.  aetna  ins.  co.  479 

BAILEY  V.  AETNA  INS.  CO. 
77  TFw.,  336.     \1890.\ 

Action  by  Elmer  Bailey  and  others  against  the  Aetna  In- 
surance Company  and  others  who  were  joined  with  the  insurance 
company  as  defendants,  because  they  would  not  join  as  plain- 
tiffs. From  an  order  overruling  a  demurrer  to  the  complaint, 
said  insurance  company  appeals. 

Cole,  C.  J.    It  seems  to  us  that  there  is  no  room  to  doubt  as 
to  the  nature  of  this  action.    The  complaint  is  clearly  to  recover 
the  amount  due  on  a  policy  of  insurance.    It  states  what  prop-"^ 
erty  was  insured  by  the  defendant  company,  the  amount  of  the 
insurance,  the  destruction  of  the  insured  property  by  fire,  the 
furnishing  of  proofs   of  loss,   and   demands  judgment  against 
the  company  for  the  amount  of  the  loss,  viz.,  the  specified  sum  of 
$928,  with  interest.    It  is  a  plain,  ordinary  action  at  law,  upon  a 
contract  of  insurance.    It  is  true  the  complaint  not  only  demands 
judgment  for  the  sum  just  stated,  but  also  asks  judgment  for 
costs  and  disbursements,  "and  for  such  other  or  further  order, 
judgment,  or  relief  as  may  be  equitable."    But  this  clause  for 
other  relief  than  a  money  judgment  does  not  change  the  action 
to  one  equitable,  nor  render  the  complaint  demurrable.     This 
court  has  followed  the  rule,  in  a  case  of  double  pleading,  of  look-   ^^^""'^  *"^*" 
ing  at  tne  prayer  for  reliel'  to  delermiue  the  nature  ot  the  action;"  t>>-*^^''^*^ 
But  tnat  rule  is  one  resorted  Lu  in  case  uf  aetUai  doubt  upon  tne  „ 
facts~sertortb,  6r  gtatemems  made.    But  there  is  notning  uncer-  yj,^,^  v^jj 
fam,  ambiguous,  or  doubtful,  upon  the  allegations  of  the  com-  <;^  Xsju^sLo^, 
plaint.     It  is  a  plain  action  at  law  to  recover  the  amount  due  ^--vx-*>_j«-»>>i 
upon  the  policy  of  insurance.    There  may  be  unnecessary  matter  ^>-^^^-'^  ^ 
stated  and  relief  asked  not  strictly  legal,  but  this  redundant  N^  rSS^^ 
matter  does  not  vitiate  the  complaint,  or  change  the  character  of  ^^  ^^t^jSXjs^ 
the  action.    This  point  we  deem  so  clear  as  to  require  no  further 
comment.     *     *     * 


SOUTH  BEND  PLOW  CO.  v.  CRIBB.     t 

105  Wis.,  443.      [1900.] 

Action  by  the  South  Bend  Chilled-Plow  Company  and  others 
against  George  C.  Cribb  Company  and  others  to  set  aside  certain 
fraudulent  conveyances,  and  subject  the  property  to  the  claims 


480  THE  COMPLAINT.  [ClIAI*.  111. 

of  creditors.  A  demurrer  to  the  complaint  was  overruled,  and 
defendants  appeal. 

Appeals  from  the  Circuit  Court  for  Milwaukee  county,  from 
orders  overruling  separate  demurrers  to  the  complaint,  each 
grounded  on  the  proposition  that  such  complaint  states  several 
causes  of  action  that  cannot  be  properly  joined.  The  complaint, 
by  appropriate  allegations,  sets  forth  that  each  of  the  plaintiffs 
is  a  creditor  of  the  defendant  corporation,  the  George  C.  Cribb 
Company;  the  amount  of  the  indebtedness  as  to  each;  that  the 
action  is  brought  in  behalf  of  the  plaintiffs  as  creditors  of  such 
corporation  and  of  all  persons  similarly  situated ;  that,  after  the 
indebtedness  mentioned  accrued,  the  officers  and  directors  of  tha 
corporation,  named  as  defendants,  in  breach  of  their  duties  as 
such  to  the  corporation,  wasted  and  misapplied  its  assets  and 
converted  the  same  to  their  own  use  and  to  the  use  of  the  defend- 
ant corporation,  the  Cribb  Carriage  Company,  which  last-named 
corporation  is  alleged  to  have  been  formed  by  such  officers  and 
directors  in  aid  of  a  scheme  formed  by  them  to  remove  the  assets 
of  the  George  C.  Cribb  Company,  without  consideration,  from 
its  control  and  beyond  the  reach  of  its  creditors,  which  scheme 
was  carried  out,  leaving  the  debtor  corporation  wholly  insolvent. 
All  the  various  steps  resorted  to,  to  effect  the  scheme  above 
stated,  are  set  forth  in  the  complaint,  together  making  a  good 
cause  of  action  in  equity  at  the  suit  of  creditors,  against  the 
officers  of  the  George  C.  Cribb  Company  and  the  corporation 
and  persons  who  fraudulently  obtained  the  property  of  such 
company  as  alleged,  or  some  part  thereof,  to  set  aside  the  alleged 
fraudulent  transfers  and  compel  an  accounting  by  such  officers 
of  their  official  management  of  the  affairs  of  the  corporation  so 
far  as  uecessarj^  to  protect  the  plaintiffs  as  creditors  and  pro- 
tect all  other  persons  similarly  interested.  The  complaint  con- 
tains a  prayer  for  relief  to  that  effect,  and,  in  addition,  for  judg- 
ment against  the  George  C.  Cribb  Company  in  favor  of  the 
South  Bend  Chilled-Plow  Company  for  the  amount  claimed  to 
be  due  to  it,  and  similar  judgments  in  favor  of  the  St.  Paul  Plow 
Company  and  the  Western  Wheeled-Scraper  Company  respec- 
tively. 

Marshall,  J.  (after  stating  the  facts) :  The  complaint,  in  all 
essential  parts,  is  the  same  as  that  considered  on  the  first  appeal 
in  this  case,  reported  in  97  Wis.,  230,  72  N.  W.,  749.  While  the 
question  here  raised  was  not  presented  for  consideration  there. 


Sec.  2.]  south  bend  plow  co.  v.  cribb.  481 

it  was  necessarily  involved  and  was  decided  in  reaching  the  con- 
clusion upon  which  the  decision  was  grounded ;  and  the  result  is 
therefore  res  adjudieata  of  the  same  question,  presented,  as  it 
now  is,  as  the  primary  subject  for  adjudication.     Case  v.  Hoff- 
man, 100  Wis.,  334,  75  X.  W.,  945;  Quackenbush  v.  Railroad  Co , 
71  Wis.,  472,  37  X.  W.,  834;  Wells,  Res.  Adj.,  sec.  217.     It  is 
said  that  "Every  proposition  assumed  or  decided  by  the  court, 
leading  up  to  the  final  conclusion,  and  upon  which  such  conclu- 
sion was  based,  was  as  effectually  passed  upon  as  the  ultimate 
question  which  was  finally  solved."    Trustees  v.  Stocker,  42  N.  J. 
Law.,  115.    That  rule  applies  to  a  second  presentation  of  a  ques- 
tion in  this  court  on  demurrer  to  the  same  complaint.    Xoonan  v. 
Orton,  27  Wis.,  300;  Fire  Department  of  Oshkosh  v.  Tuttle,  50 
Wis.,  552,  5  X.  W.,  549 ;  Ellis  v.  Railroad  Co.,  80  Wis.,  459'  50 
N.  W.,  397;  Schoenleber  v.  Burkhardt,  94  Wis.,  575,  69  X.  W., 
343.     On  the  first  appeal  the  ground  of  demurrer  was  insuffi- 
ciency of  facts  to  constitute  a  cause  of  action.    In  reaching  a  con- 
clusion as  to  that,  the  character  of  the  complaint  and  the  cause 
of  action  stated  therein,  if  any,  were  necessarily  considered,  and 
the  result  was  that  the  complaint  stated  a  caiLse  of  action  against 
the  officers  of  the  George  C.  Cribb  Company  for  misuse  of  the 
property  of  the  corporation  to  the  injury  of  its  creditors,  and 
for  which  such  creditors  were  entitled  to  relief  under  the  statutes 
(sections  3237,  3239,  Rev.  St.).     It  was  held  that,  though  there 
were  many  historical  matters  stated  in  the  pnmplf^1•T^t  jn  connec- 
tion with  the  facts  essential  to  the  purpose  of  the  pleader,  the 
P urpose  appeared  with  reasonable  certaintv  to  he  to  rpdrp^s  a 
wrgng^  to  the  corporation  in  which  the  creditors  were  interested 
and  for  which  they  were  entitled  to  a  remedy  in  the  manner 
sought.  ~~  ' — 

Notwithstanding  the  foregoing,  some  observations  on  the  merits 
of  the  question  presented  will  not  be  out  of  place,  and  may  be 
helpful  in  other  cases. 

As  has  often  been  said  by  this  court,  the  test  of  whether  therfi 
is  more  than  one  cause  of  action  stated  in  a  complaint  is  not 
whether  there  are  different  kinds  of  relief  prayed  for  or  obiectj"" 
soughti  b"t  whether  there  is  more  tlian  one  pnmarv  right  sought 
to  be  enforced  or  one  subject  of  controversv  presentedTor  adJilHr' 
cation.  Gager  v.  Marsden,  101  Wis.,  598,  77  X.  W..  922. — Tn 
every  cause  of  action  there  must  exist  a  primary  right,  a  cor- 
responding primary  duty,  and  a  failure  to  perform  that  dutv 
31  *^' 


482  THE  COMPLAINT.  [ClIAP.  III. 

The  result  may  be,  and  often  is,  that  the  wronged  party  is 
mTfTf1fJ_fn-g£-^<'^^^  ^^^"^'"^  Q^  relief.  The  fact  that,  in  such  circum- 
stances, in  his  action  to  enforce  the  right  denied,  the  plaintiff 
prays  for  full  relief,  combining  several  elements  or  objects,  does 
not  render  the  complaint  open  to  demurrer  on  the  ground  of 

i multifariousness.  In  testing  a  complaint  to  determine  whether 
it  is  single  or  double  as  regards  primary  rights,  the  different 
objects  in  view  by  the  pleader,  as  indicated  by  the  prayer  for 
relief,  are  not  controlling.  They  are  of  no  significance  what- 
ever, except  to  aid  in  construing  the  allegations  of  the  pleader 
and  in  clearing  up  obscurities  that  may  exist,  as  to  whether  he 
intended  to  state  facts  showing  a  violation  of  distinct  primary 
rights,  or  not.  When  there  is  no  obscurity  in  that  regard,  the 
statement  of  facts  upon  which  the  prayer  for  relief  is  based 
alone  speaks,  and  if  the  language  shows  presentation  for  adjudi- 
cation of  a  single  controversy,  it  cannot  be  enlarged  by  what  fol- 
lows in  the  prayer  for  relief  even  though  it  be  appropriate  to 
several  distinct  causes  of  action. 

Applying  what  has  been  said  to  the  pleading  jn  this  case,  but 
one  cause  of  action  can  be  discovered  which  the  pleader  is  seek- 
ing to  enforce,  and  thaQs  to  ^nrnppl  tbp.  nfficprs  of  the  fteorp^e 
C.  Cribb  Company  to  account,  for  their  official  conduct  in  the 
management  and  disposition  of  the,  funds  nnd  property  of  the 
corporation,  for  Jhe_benp,fit  of  its  r"-Prlitnrs  That  involves,  nec- 
cessarily,  an  adjudication  as  to  the  amount  of  the  claims  of  the 
respective  creditors,  whether  plaintiffs  or  defendants,  and  tho 
rights  of  parties  who  are  the  guilty  participants  with  the  officers 
of  the  corporation  in  fraudulently  disposing  of  or  wasting  its 
property.  The  facts  pleaded  show  a  single  cause  of  action,  as 
'  indicated,  with  such  clearness  that  the  scope  of  the  prayer  for 
relief  cannot,  by  any  rule  of  construction,  change  it  to  a  state- 
ment of  two  primary  rights  violated  and  the  presentation  of  two 
primary  controversies  for  adjudication.  The  result  is  that  the 
orders  appealed  from  must  be  affirmed. 


Sec.  3.]  the  complaint.  483 


^  Section  3.    The  Union  of  Several  Causes  of  Action. 

Code  Provisions: 

Causes  of  action  to  be  separately  stated.  *' Where  the  com- 
plaint sets  forth  two  or  more  causes  of  action,  the  statement  of 
the  facts  constituting  each  cause  of  action  must  be  separate  and 
numbered. ' ' — N.  Y.  Code  Civ.  Proc.,  Sec.  483. 

What  causes  of  action  may  be  joined  in  the  same  complaint. 
"The  plaintiff  may  unite  in  the  same  complaint,  two  or  more 
causes  of  action,  whether  they  are  such  as  were  formerly  denom- 
inated legal  or  equitable,  or  both,  where  they  are  brought  to 
recover  as  follows: 

1.  Upon  contract,  express  or  implied. 

2.  For  personal  injuries,  except  libel,  slander,  criminal  con- 
versation or  seduction. 

3.  For  libel  or  slander. 

4.  For  injuries  to  real  property. 

5.  Real  property,  in  ejectment,  with  or  without  damages  for 
the  withholding  thereof. 

6.  For  injuries  to  personal  property. 

7.  Chattels,  with  or  without  damage  for  the  taking  and  deten- 
tion thereof. 

8.  Upon  claims  against  a  trustee,  by  virtue  of  a  contract,  or 
by  operation  of  law. 

9.  Upon  claims  arising  out  of  the  same  transaction,  or  trans- 
actions connected  with  the  same  subject  of  action,  and  not 
included  within  one  of  the  foregoing  subdivisions  of  this  section. 

10.  For  penalties  incurred  under  the  fisheries,  game  and 
forest  law. 

But  it  must  appear,  upon  the  face  of  the  complaint,  that  all 
the  causes  of  action,  so  united,  belong  to  one  of  the  foregoing 
subdivisions  of  this  section;  that  they  are  consistent  with  each 
other;  and,  except  as  otherwise  prescribed  by  law,  that  they 
affect  all  the  parties  to  the  action ;  and  it  must  appear  upon  the 
face  of  the  complaint,  that  they  do  not  require  different  places 
of  trial."— -iV.  Y.  Code  Civ.  Proc,  Sec.  484. 

Causes  of  action  that  may  be  united  in  the  petition. 

"The  plaintiff  may  unite  in  the  same  petition  several  causes 
of  action,  whether  they  be  such  as  have  heretofore  been  denom- 
inated legal  or  equitable  or  both,  where  they  arise  out  of :    First, 


484  THE  COMPLAINT.  [ChAP.  III. 

the  same  transaction  or  transactions  connected  with  the  same 
subject  of  action;  or,  second,  contract,  express  or  implied;  or, 
third,  injuries  with  or  without  force,  to  the  person  and  property, 
or  either;  or,  fourth,  injuries  to  character;  or,  fifth,  claims  to 
recover  real  property,  with  or  without  damages  for  the  with- 
holding thereof,  and  the  rents  and  profits  of  the  same;  or,  sixth, 
claims  to  recover  personal  property,  with  or  without  damages 
for  the  withholding  thereof;  or,  seventh,  claims  by  or  against  a 
party  in  some  fiduciary  or  representative  capacity,  by  virtue  of  a 
contract,  or  by  operation  of  law.  But  the  causes  of  action  so 
united  must  belong  to  one  of  these  classes,  and  must  affect  all 
tho  parties  to  the  action,  and  not  require  different  places  of  trial, 
and  must  be  separately  stated,  with  the  relief  sought  for  each 
cause  of  action,  in  such  manner  that  they  may  be  intelligibly 
distinguished."— ilio.  E.  S.,  1899,  Sec.  593. 


(a)     The  Separate  Statement. 
^C  rf  BAILEY  V.  iMOSHER. 

A 

63  Fed.  (C.  C.  A.),  488.     [1894.] 

Caldwell,  Circuit  Judge.  This  action  was  brought  in  the 
district  court  of  Lancaster  county,  Neb.,  by  Thomas  Bailey,  the 
plaintiff  in  error,  against  Charles  W.  Mosher,  Homer  J.  Walsh, 
Rolla  0.  Phillips,  Charles  E.  Yates,  Ellis  P.  Hamer,  Ambrose  P. 
S.  Stewart,  and  Richard  C.  Outcalt,  the  defendants  in  error,  and 
removed  into  the  circuit  court  of  the  United  States  for  the  dis- 
trict of  Nebraska  on  the  petition  of  the  defendants,  upon  the 
ground  that  the  suit  was  one  arising  under  the  laws  of  the  United 
States.  A  motion  to  remand  the  cause  to  the  State  court  was 
overruled,  and  a  demurrer  to  the  complaint  was  sustained,  and 
final  judgment  entered  for  the  defendants ;  whereupon  the  plain- 
tiff sued  out  this  writ  of  error,  assigning  for  error  these  rulings 
of  the  circuit  court.  The  petition  alleges  the  plaintiff  loaned  the 
Capital  National  Bank  of  Lincoln  $11,500,  and  seeks  by  this  suit 
to  recover  the  same  from  the  defendants,  who  were  directors  of 
the  bank,  upon  grounds  to  be  presently  stated. 

We  have  found  it  necessary  to  consider  only  two  of  the  many 
questions  discussed  in  the  briefs  of  counsel.  It  is  earnestly  con- 
tended that  this  is  not  a  suit  arising  under  the  laws  of  the  United 


Sec.  3.]  bailey  v.  mosher.  485 

States,  but  is  an  action  for  deceit,  with  which  the  national  bank- 
ing act  has  no  connection. 

The  soundness  of  this  contention  must  be  tested  by  the  aver- 
ments of  the   petition.     The  petition  states  a  single  cause  of 
action,  founded  Avholly  upon  the  alleged  misfeasance  and  non- 
feasance of  the  defendants  m  their  capacities  as  officers  and 
directors  of  a  national  bank.    The  alleged  official  misconduct  of 
the  defendants  which  is  relied  upon  as  stating  a  ground  of  action 
is  particularly  set  out.     It  is  alleged  that  they  made  false  and 
misleading  reports  as  to  the  condition  of  the  bank  to  the  comp- 
troller of  the  currency,  by  which  the  plaintiff  was  deceived  and 
misled  as  to  the  condition  of  the  bank ;  that  loans  were  made  to 
persons  in  excess  of  the  amount  which  could  lawfully  be  loaned 
to  any  one  person;  that  they  made  large  loans  to  the  president 
and  cashier  of  the  bank,  in  violation  of  the  banking  act,  and 
declared  and  paid  dividends  when  there  were  no  earnings  or 
profits  out  of  which  to  pay  them ;  that  all  these  acts  were  viola- 
tions of  the  national  banking  act,   and  of  the   duties  of  the  ^''^''^^^""'^ 
defendants  as  officers  and  directors  of  the  bank  under  that  act ;  ^"'"'■^'"T^v 
and  the  complaint  concludes  with  the  averment  that,  ^'by  reason  o^^-^^  t^^-sr^ 
of  the  several  violations  of  the  banking  law  as  above  set  forth."  ^'^   '-^^ 
the  defendants  are  liable  to  the  plaintiff  in  the  sum  sued  for.    In    v\-^>  •  ■^-•^ 
view  of  the  last  averment  of  the  petition  it  is  difficult  to  per-  a>«^    Nj*-^ 
ceive  how  the  plaintiff  can  successfully  maintain  that  this  cause   c-.--^.^*X>.W 
of  action  does  not  arise  under  a  law  of  the  United  States.  <»w^  <K-;i:k«^ 

It  is  said  in  the  brief  of  the  learned  counsel  for  the  plaintiff  ^^^..tcji^  ^ 
in  error  that,  if  certain  allegations  of  the  petition  state  a  cause^^^^^^^^^jj^^^^.^^ 
of  action  for  a  violation  of  the  national  banking  act,  the  preced-  ^^^j^^^^,^^^^^ 
ing  paragraphs  state  an  independent  cause  of  action  for  deceit. 
A  petition  containing  a  single  paragraph  cannot  be  made  to  sub- 
serve the  purpose  of  two  distinct  and  dissimilar  causes  of  action. 
Kewaunee  Co.  v.  Decker,  30  Wis.,  624.  We  feel  constrained  to 
hold  that,  properly  construed,  the  petition  contains  but  one  para- 
graph or  count,  and  states  but  one  cause  of  action,  and  that  the 
cause  of  action  stated  is  one  for  the  misfeasance  and  mismanage- 
ment of  the  affairs  of  the  bank  by  the  defendants  as  its  officers 
and  directors.  We  cannot  adopt  the  view  of  the  plaintiff  in 
error,— that  those  clauses  of  the  petition  which  state,  or  tend  to 
state  a  cause  of  action  for  deceit  at  common  law,  should  be 
segregated  from  the  other  clauses  of  the  petition,  and  held  to 
constitute  the  statement  of  the  cause  of  action.    The  court  can- 


486  THE  COMPLAINT.  [ClIAP.  III. 

not  reject  the  allegations  of  the  petition  which  do  state  a  cause 
of  action  under  the  banking  act,  for  the  purpose  of  converting 
mere  matter  of  inducement  or  surplusage,  contained  elsewhere 
in  the  petition,  into  a  substantive  statement  of  a  cause  of  action 
different  from  that  which  the  petition  in  terms  declares  to  be  the 
foundation  of  the  action. 

The_plaintiff  was  not  bound  to  state  the  legal  effect  of  the 
facts  set  out  in  his  petition,  but,  having  done  so,  he  cannot  com- 
plain if  his  adversary  and  thp  <^mirt  ao.o.e.pt  and  act  upon  his  owm 
theory.  Especially  is  this  so  when  the  petition  is  ambiguous,  and 
will  support  that  theory  as  well  or  better  than  any  other. 

In  the  sense  of  the  word,  as  used  in  code  pleading,  there  is_ 
but  one  paragraph  in  this  petiti^n^  The  term  "paragraph,"  as 
iised  in  code  pleading,  means  an  entire  or  integral  statement  of  a 
cause  of  action.  It  is  the  equivalent  of  "count"  at  common  law. 
It  may  embrace  one  sentence  or  many  sentences;  but,  whether 
one  or  many,  it  constitutes  a  statement  of  a  single  cause  of  action. 
It  is  a  requirement  of  some  codes  that,  if  the  petition  contains 
"more  than  one  cause  of  action,  each  shall  be  distinctly  stated  by 
arate  paragraph  and  numbered"  (Code  Ark.,  Sec.  5027)  ;  and 
all  of  them  require  that  each  cause  of  action  shall  be  separately 
stated  and  numbered.  -The  Nebraska  Code  provides  that,  ' '  where 
the  petition  contains  more  than  one  cause  of  action,  each  shall  be 
separately  stated  and  numbered."  Consol.  St.,  Neb.,  1891,  Sec. 
4633  (93).  And  the  Supreme  Court  of  that  state,  construing 
this  section,  have  said:  "A  plaintiff  cannot  jumble  his  causes 
of  action  together."  Bank  v.  Bollong,  24  Neb.,  821,  40  N.  W., 
411.  If,  in  drafting  the  petition,  the  pleader  supposed  he  was 
stating  more  than  one  cause  of  action,  he  would  undoubtedly 
have  separately  stated  and  numbered  them,  as  required  by  the 
Nebraska  Code.  No  one  can  point  out  in  this  petition  where  the 
statement  of  one  cause  of  action  ends  and  another  begins.  The 
plaintiff  cannot  reform  or  amend  his  petition  in  this  court.  If 
it  w^ere  possible  to  spell  out  of  the  averments  of  this  petition, 
taken  separately  or  together,  an  action  for  deceit,  the  court 
would  be  precluded  from  attaching  that  meaning  to  them  by  the 
positive  statement  contained  in  the  petition  itself  that  the  action 
is  grounded  on  the  "violations  of  the  banking  law"  therein  set 
out.  Section  5239  of  the  Revised  Statutes  of  the  United  States 
provides  that : 

"If  the  directors  of  any  national  banking  association  shall 


Sec.  3.] 


BAILEY  V.   MOSHEB. 


487 


knowingly  violate,  or  knowingly  permit  any  of  the  officers, 
agents,  or  servants  of  the  association  to  violate  any  of  the  pro- 
visions of  this  title,  all  the  rights,  privileges  and  franchises  of 
the  association  shall  be  thereby  forfeited.  *  *  *  And  in 
cases  of  such  violation,  every  director  who  participated  in,  or 
assented  to,  the  same  shall  be  held  liable  in  his  personal  and 
individual  capacity  for  all  damages  which  the  association,  its 
shareholders,  or  any  other  person  shall  have  sustained  in  conse- 
quence of  such  violation." 

It  is  obvious  that  the  plaintiff,  in  the  inception  of  this  case, 
had  in  view  the  enforcement  of  the  defendants'  liability  under 
the  last  clause  of  this  section.  Under  section  2  of  the  judiciary 
act  of  August  13,  1888,  ja  removal  cannot  be  sustained  upon  a 
statement,  in  the  defendant^  petition  therefor,  that  the  suit  is 
one  arising  under  the  laws  of  the  United  States,  but  that  fact 
must  appear  by  the  plaintiff's  statement  of  his  own  claim.  Ten 
nessee  v.  Union  &  Planters'  Bank,  152  U.  S.,  454,  14  Sup.  Ct, 
654.  In  this  cause  the  plaintiff's  petition  does  disclose  that  the, 
cause  of  action  is  one  arising  under  the  laws  of  the  United  States. 
Tennessee  v.  Davis,  100  U.  S.,  257,  264;  Cooke  v.  Avery,  147  U.  S., 
375,  13  Sup.  Ct.,  340 ;  Walker  v.  Bank,  5  U.  S.  App.,  440,  5C.  C. 
A.,  421,  56  Fed.,  76. 

The  petition  shows  that  the  bank  of  which  the  defendants  are 
officers  and  directors  is  insolvent,  and  has  passed  into  the  hands 
of  a  receiver  appointed  by  the  comptroller  of  the  currency  under 
the  national  banking  act.  The  liability  of  the  defendants,  what- 
ever it  may  be.  for  the  acts  complained  of  in  the  petition,  is  an 
asset  of  the  bank,  belonging  equally  to  all  of  the  creditors  in 
proportion  to  their  respective  claims^  and  cannot  be  appro- 
priated,  in  whole  or  in  part,  by  a  single  creditor  to  the  exclusive 
payment  of  his  own  claim.  It  is  the  policy  of  the  national  bank- 
ing act  to  secure  the  ratable  distribution  of  the  assets  of  an 
insolvent  national  bank  among  all  its  creditors.  Assuming  that 
the  defendants  are  liable  in  damages  for  the  acts  complained  of 
in  the  petition,  they  are  liable  at  the  suit  of  the  receiver,  who  is 
the  statutory  assignee  of  the  bank,  and  the  proper  party  to  insti- 
tute all  suits  for  the  recoverv  of  the  assets  of  the  bank,  of  what- 
ever  nature,  to  the  end  that  they  may  be  ratably  distributed 
among  its  creditors.  Rev.  Statutes  U.  S.,  Sec.  5234 ;  Kennedy  v. 
Gibson,  8  Wall.,  498 ;  Bank  v.  Colby,  21  Wall.,  609 ;  Hornor  v. 
Henning,  93  U.  S.,  228;  Stephens  v.  Overstoltz,  43  Fed.,  771; 


488  THE  COMPLAINT.  [ClLVP.  III. 

Bank  v.  Peters,  4  Fed.,  13.  The  law  will  not  allow  one  creditor 
to  appropriate  the  whole  liability  of  the  directors  to  his  own  ben- 
efit. It  is  well  settled  that  an  injury  done  to  the  stock  and  cap- 
ital of  a  corporation  by  the  negligence  or  misfeasance  of  its  offi- 
cers and  directors  is  an  injury  done  to  the  whole  body  of  stock- 
holders in  common,  and  not  an  injury  for  which  a  single  stock- 
holder can  sue.  Smith  v.  Hurd.  12  Mete.  (Mass.),  371;  Howe  v. 
Barney,  45  Fed.,  66S.  The  same  rule  applies  to  the  creditors  of 
a  corporation.  But  it  is  said  the  plaintiff  is  not  suing  as  a  cred- 
itor of  the  bank,  or  for  its  mismanagement,  but  for  the  fraud 
and  deceit  practiced  upon  him  through  the  defendants'  report  to 
the  comptroller  of  the  currency  by  which  he  alone  was  damaged. 
As  we  have  seen,  the  frame  of  the  petition  will  not  support  this 
contention.  The  motion  to  remand  was  properly  overruled,  and 
the  demurrer  to  the  petition  rightly  sustained,  upon  the  ground 
that  the  plaintiff  is  not  the  proper  party  to  sue  for  the  cause  of 
action  stated  in  the  complaint  as  we  construe  it.  These  rulings 
make  it  unnecessary  to  express  any  opinion  upon  the  other  ques- 
tions so  fully  and  ably  argued  by  counsel.  The  judgment  of  the 
circuit  court  is  affirmed.*  p. 

■!^^^' 

FAESI  V.  GOETZ. 
15  Wis.,  231.     [1862.] 

By  the  Court,  Paine,  J.     This  was  an  action  to  foreclose  a^ 
mortgage,  in  which  a  personal  judgment  w^as  claimed  for  the 
deficiency.     There  was  a  demurrer  for  misjoinder  of  causes  of 
action,  and  the  plaintiff  had  judgment  for  the  frivolousness  of 
the  demurrer. 

We  have  several  times  decided  such  demurrers  not  to  be  friv- 
olous, and  subsequently  that  they  were  well  taken,  where  the 
different  causes  of  action  did  not  affect  all  the  different  parties. 
Walton  V.  Goodnow,  13  Wis.,  661 ;  Sauer  v.  Steinbauer,  14  id., 
70 ;  Gary  v.  Wheeler,  id.,  281.  Even  if  we  were  inclined  to  review 
'  our  latter  decision,  holding  the  demurrer  well  taken,  we  certainly 
should  not  hold  it  frivolous.  But  the  argument  of  counsel  in 
this  case  did  not  change  our  opinion.  It  was  based  entirely  on 
the  fact  that  all  the  facts  stated  in  the  complaint  were  necessar- 

*And  so  in  Booker  v.  Goldsborough,  44  Ind.  490. 


Sec.  3.]  faesi  v.  goetz.  489 

ily  stated  to  establish  the  equitable  cause  of  action,  to  bar  a 
redemption.  This  being  so,  it  was  said,  that  as  thp  complaint  did 
not  profess  to  state  any  second  cause  of  action  sep^ratplv,  there- 
fore it  must  be  held  to  state  only  one,  although  the  relief 
demanded  included  a  judgment  both  for  the  legal  and  the  equit- 
able cause  of  action.  We  think  this  position  cannot  be  sustained, 
for  the  reason  that  although  all  the  facts  stated  were  necessary 
to_the  equitable  cause  of  action,  it  is  equally  apparent  that  they 
are  entirely  sufficient  for  both  causes  of  action.    And  therefore. 


to  determine  whether  they  were  set  forth  for  the  purpose  of   f^^^^  ^ 

showing  both  causes  of  action,  the  prayer  for  relief  must  be  looked  *^^W\» 

to.    And  this  clearly  shows  that  the  intention  of  the  pleader  was^   ^\^^V^ 

to  proceed  for  both  causes  of  action,  as  has  always  been  the  prac- 

Tice  "here,  until  the  statute  providing  for  it  was  repealed.     Th^  ''^ 

intention  being  thus  apparent,  and  the  facts  stated  entirely  suf-Y 

ficient  to  accomplish  that  intent,  it  would  be  allowing  the  pleader  \ 

to  take  advantage  of  his  own  fault,  to  escape  from  a  demurrer  on  \ 

the  ground  that  he  did  not  state  the  two  causes  of  action  sepa-; 

rately. 

The  judgment  must  be  reversed,  with  costs.         -Yjov  <5Ki-\^  - 

—    r 

CHILDS  V.  BANK  OF  MISSOURI. 

17  Mo.,  213.     [1852.] 

Childs  brought  an  action  under  the  new  code,  alleging  that 
the  defendant  had  falsely  accused  and  caused  him  to  be  accused 
of  embezzlement,  and  upon  this  charge  had  unjustly  and  mali- 
ciously, and  without  probable  cause,  caused  him  to  be  arrested 
and  imprisoned;  that  under  the  color  of  a  search  warrant,  the 
defendant  had  obtained  possession  of  certain  valuable  papers, 
and  e\idences  of  debt  belonging  to  the  plaintiff;  that  the  de- 
fendant had  caused  the  dwelling  house  of  the  plaintiff  to  be  be- 
set by  armed  men  by  day  and  by  night,  thus  restraining  the 
plaintiff  and  his  family  of  their  liberty,  and  interrupting  their 
intercourse  with  their  friends;  and  that  the  defendant  had 
falsely  and  maliciously  caused  the  plaintiff  to  be  indicted  and 
prosecuted;  for  all  which  grievances,  the  plaintiff  claimed  dam- 
ages to  the  amount  of  fifty  thousand  dollars. 


490  TUE  COMPLAINT.  [CilAl'.  lil. 

A  demurrer  to  this  petition  was  sustained,  and  the  cause  is 
brought  to  this  court  by  writ  of  error. 

Ryland,  Judge,  delivered  the  opinion  of  the  court : 

*  *  *  2.  The  new  code  of  practice  says  the  "plaintiff 
may  unite  in  his  petition  as  many  causes  of  action  as  he  may 
have."  Art.  7,  §12.  The  petition  shall  contain  "a  statement 
of  the  facts  constituting  the  cause  of  action,  in  ordinary  and 
concise  language,  without  repetition,  and  in  such  manner  as  to 
enable  a  person  of  common  understanding  to  know  what  is 
intended."    Art.  6,  §1. 

In  New  York,  the  code  says  the  complaint  shall  contain  "a 
plain  and  concise  statement  of  the  facts  constituting  the  cause 
of  action,  without  unnecessary  repetition,"  and  the  plaintiff  can 
unite  several  causes  of  action  in  the  same  complaint,  when  they 
are  of  the  same  nature.  IIow  unite  them  ?  By  mixing  them  up 
in  one  undistinguished  and  undistinguishable  mass?  Clearly 
not ;  reason  forbids  this.  It  needs  not  the  results  of  centuries  of 
experience  to  show  us  how  inconvenient  this  would  be.  See  6 
Howard's  Practice,  Rep.  298. 

In  New  York,  where  they  have  greatly  improved  the  code 

since  it  was  first  adopted,  they  require  each  distinct  cause  of 

action  to  be  set  down  with  precision  and  particularity ;  and  if  the 

plaintiff  fails  to  make  the  proper  statements,  they  will  be  stricken 

out  as  redundant.    He  is  not  permitted  to  throw  the  burden  of 

analysing  his  complaint,  and  of  separating  the  causes  of  action 

on  the  court;  nor  is  the  defendant  required  to  this  at  his  peril. 

See  the  case  above  cited. 

^  V*jL<|^        Now  under  our  statute,  where  the  plaintiff  is  permitted  to  put 

.^.^j;^.-^         in  his  petition  as  many  causes  of  action  as  he  may  have,  no  mat- 

y  t>jut.«-A'a^  ter  what  may  be  their  nature  or  origin,  there  is  still  greater  ne- 

^^^,^^,,j^^i5i^     cessity  for  him  to  mark  each  cause  distinctly;  separate  each 

*   Q ,i_       cause  from  its  neighbor  with  proper  marks  and  with  proper  dis- 

.^^  /t.jua-»cA^  tinctness,  or  "the  jaerson  of  common  understanding"  may  not 
>»-»-<»  ^  P^  ^^^^  to  know  what  was  intended;  indeed  the  most  acute  pro- 
Xw^^  r         fessional  mmd  may  be  at  a  loss  to  know  what  is  intended. 

These  observations  are  necessary  in  order  to  make  plaintiffs 
more  particular  and  careful.  We  have  already  decided,  that 
multifariousness  and  duplicity  are  defects  under  our  law  yet ;  we 
have  not  said  that  they  can  be  reached  by  a  demurrer;  nor  will 
we;  but  then  there  is  a  remedy  for  such  defects. 

In  this  case,  we  cannot  say  the  action  is  brought  to  recover  a 


Sec.  3.]  childs  v.  bank  of  Missouri.  491 

sum  of  money ;  nor  can  we  call  it  an  action  for  maHcious  prosecu- 
tion, nor  false  imprisonment.  It  is  one  sui  generis.  It  was 
among  the  first  brought  under  our  new  code,  and  it  is  not  to  be 
wondered  at,  for  really  our  oldest  and  best  lawyers  find  them- 
selves hesitating— pausing  to  know  what  to  do. 

Upon  the  whole  of  the  matter  set  forth  in  the  petition,  it  is  to 
bejeen,  that  if  such  things  did  take  place  as  therein  charged 
against  the  bank,  its  servants  or  agents  or  officers  may  be  re- 
^onsible  to  the  persons  injured,  ^^nrl  against  such  the  law  a^ 

fordsa  remedy. 

The  judgment  below  should,  then,  be  affirmed,  and  such  bemg 
the  opinion  of  Judge  Scott  (Judge  Gamble  not  sitting  in  this 
cause),  it  is  affirmed  accordingly.  ^ 


NATOMxV  MINING  CO.  v.  CLARKIN. 
14  Cal,  545.     [I860.] 

Field,  C.  J.,  delivered  the  opinion  of  the  court,  Baldwin,  J., 
and  Cope,  J.,  concurring. 

The  complaint  in  this  case  seeks  a  recovery  of  certain  prem- 
ises situated  within  Sacramento  county,  as  in  an  ordinary  action 
of  ejectment ;  and  also,  an  injunction  to  restrain  the  commission 
of  trespass  in  the  nature  of  waste,  pending  the  action.     T^  -/Va^-^Jt  V 
blending  of  an  action  at  law,  with  a  petition  for  ancillary  relief  ^  ^^^_^-33^ 
tolhe  equity  side  of  the  court,  is  admissible  under  our  svstem  of      ^^-V^^^'-^ 
practice.    But  to  prevent  confusion,  and  preserve  the  simplicity;  *^*^^^^ 
and  directnTss  requisite  in  the  averments  of  a  complaint  in  an   ^^-^^^xA^^ 
action  at  law,  the  grounds  of  equity  interposition  should  be 
stntpd  subsequentlv  to.  and  distinct  from,  those  upon  which  the. 
T^dgment  at  law  is  sought.    It  would  be  the  better  practice,  in-^ 
such'case,  to  commence  that  portion  of  the  complaint  which 
seeks  equitable  relief,  with  the  form:  "and  for  equitable  relief, 
pending  the  above  action,  the  plaintiff  further  represents";  or, 
"for  a  further  cause  of  action,  the  plaintiff  represents." 

The  principal  acts  charged  as  trespasses,  for  the  restraint  of 
which  injunction  is  sought,  consists  in  cutting,  destroying,  and 
carrying  away,  wood,  and  growing  timber,  which  are  alleged  to 
be  of  great  value  for  farming,  building  and  other  purposes,  and 
to   constitute   the    chief   value   of  a  portion   of  the   premises. 


P 


492  THE  COMPLAINT.  [CUAP.  III. 

In  the  present  case  no  question  is  made  as  to  the  right  of  the 
plaintiffs  to  an  injunction  upon  the  undenied  allegations  of  the 
complaint.  In  our  judgment  the  right  to  the  preventive  remedy 
was  unquestionable.  The  cutting,  destroying,  and  removing,  of 
growing  timber  on  the  premises  in  controversy  constituted,  with- 
out other  matter,  sufficient  ground  for  the  issuance  of  the  writ. 

The  judgment  must  be  reversed  and  the  cause  remanded  for 
a  new  trial,  and  the  injunction  must  be  restored  until  the  final 
determination  of  the  case,  when  the  propriety  of  dissolving  it, 
or  of  rendering  it  perpetual,  will  be  determined  according  to  the 
judgment  in  the  ejectment. 

Ordered  accordingly. 


HASKELL  V.  HASKELL. 
54  Cal.,  262.     [1880.] 

Sharpstein,  J.:  The  plaintiff,  for  a  first  cause  of  action, 
alleges  that  the  defendant,  for  more  than  ten  years  next  preced- 
ding  the  commencement  of  this  action,  was  guilty  of  extreme 
cruelty  toward  her;  and  then  proceeds  to  detail  at  great  length 
a  series  of  acts,  which,  if  proved,  would  support  a  finding  of 
adultery.  Immediately  following  this  narrative,  in  the  same 
count,  is  an  allegation  "in  further  support  of  said  charge  of 
extreme  cruelty,"  as  the  pleader  styles  it,  "that  for  more  than 
ten  years  past,  and  until  now,  defendant  has  been  addicted  to 
the  use  of  intoxicating  drinks,"  which  caused  him  to  be  "queru- 
lous and  disagreeable — often  using  toward  plaintiff  offensive  lan- 
guage in  the  presence  of  the  children;  that  his  breath  became 
nauseous  and  offensive;  so  that  for  these  reasons  and  by  reason 
of  his  intimacy ' '  with  the  woman  who  is  alleged  to  have  been  his 
paramour,  the  plaintiff  with  the  defendant's  consent  ceased  to 
lodge  with  him  in  1871.  It  is  further  alleged  in  this  connection, 
that  during  said  ten  years  the  defendant  often  appeared  before 
the  plaintff  and  her  children,  "in  a  state  of  intoxication,  and 
many  times  when  he  was  very  drunk,  so  much  so  as  to  hardly 
know  what  he  was  about, ' '  and  that  this  occasioned  the  plaintiff 
"great  mental  suffering."  These  alone  are  the  facts  alleged  in 
support  of  the  charge  of  extreme  cruelty. 

That  adultery  or  habitual  intemperance  would  in  a  popular 


Sec.  3,]  haskell  v.  haskell.  493 

sense  constitute  extreme  cruelty,  we  do  not  question.  And  so 
would  wilful  desertion  or  wilful  neglect.  But,  in  a  legal  sense^ 
extreme  cruelty  is  something  different  from  any  of  the  other 
causes  of  divorce,  and  constitutes  a  separate  and  distinct  cause 
of  action.  Otherwise,  it  would  be  unnecessary  to  specify  any 
other  cause  than  extreme  cruelty  as  a  ground  of  divorce  in  any 
ease.  This  count  seems  to  be  framed  on  the  theory  that  allega- 
tions  of  a<lulterous  conduct  which  falls  short  of  actual  adultery, 
coupled  with  allegations  of  excessive  drinking  which  does  not 
amount  to  habitual  intemperance,  constitute  a  good  cause  of 
action  for  extreme  cruelty.  That  theory  is  not  supported  by  any 
authority,  and  we  are  not  inclined  to  lend  it  our  countenance. 

On  the  trial,  the  plaintiff,  by  leave  of  the  court,  withdrew  the 
charges  of  intimacy  or  association  of  the  defendant  with  the 
woman  named  in  the  first  count  of  the  complaint;  and  it  was 
suggested  on  the  argument  by  respondent's  counsel  in  this  court, 
that  the  remaining  allegations  of  that  count,  constitute  a  cause  of 
action  for  divorce  on  the  ground  of  habitual  intemperance.  But 
the  complaint  was  not  drawn  with  that  view.  The  allegations  of 
the  same  count,  as  to  intemperance,  are  avowedly  and  expressly 
introduced  "in  further  support  of  said  charge  of  extreme 
cruelty, ' '  which  is  alleged  to  have  occasioned  the  plaintit¥ 
"great  mental  suffering,"  and  such  as  "would  reasonably 
inflict  a  course  of  great  mental  anguish"  upon  her,  which  is  a 
further  indication  that  the  pleader  had  "extreme  cruelty" 
and  not  "habitual  intemperance"  in  view.  The  allegations  of 
this  count  are  denied  in  the  answer^  and  the  court  did  not  find 
that  the  defendant  had  been  guilty  of  extreme  cruelty. 

If  the  count  states  a  cause  of  action  for  extreme  cruelty,  there 
should  have  been  a  finding  upon  the  issue  raised  by  the  answer 
to  it.  If  the  cause  of  action  stated  in  it  is  not  extreme  cruelty, 
then  the  count  is  obnoxious  to  the  objection  which  this  court 
sustained  to  a  pleading  in  McAbee  v.  Randall,  41  Cal,  136. 
Treating  it,  then,  as  the  pleader  intended  it  should  be  under- 
stood, as  stating  facts  to  constitute  a  cause  of  action  for  extreme 
cruelty,  the  judgment,  in  the  absence  of  a  finding  of  extreme 
crueltj',  cannot  be  sustained  upon  that  count. 

But  the  pleader  undertook  to  state  another  and  distinct  cause 
of  action,  and  commences  his  count  upon  it  as  follows:  "And 
for  further  and  separate  cause  of  complaint,  plaintiff  states  that 
for  more  than  two  years  next  preceding  the  commencement  of 


^ij^jCir   JLOs^jw^  "v^vvjeij^  — 


494  THE  COMPLAINT.  [CUAI'.  111. 

this  action,  defendant  lias  been,  and  still  is,  guilty  of  and 
addicted  to  intemperance, ' '  etc.  In  this  count  there  is  no  allega- 
tion  of  marriage,  or  that  the  plaintiff  has  resided  in  the  state  for_ 
the  period  of  six  months  next  preceding  the  commencement  of 
tiie  action,  nor  is  there  any  reference  in  it  to  the  allegations  in 
the  first  count  as  to  such  marriage  or  residence.  If  this  were  the 
only  count  in  the  complaint,  the  objection  that  it  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action  would  undoubtedly 
be  fatal  to  the  judgment.  And  in  Chitty's  PI.  (16th  Am.  Ed.) 
429,  it  is  said:  "But  unless  the  second  count  expressly  refers  to 
the  first,  no  defect  therein  will  be  aided  by  the  preceding  county : 
for,  though  both  counts  are  in  the  same  declaration,  yet  they 
are  for  all  purposes  as  distinct  as  if  thev  were  in  separate  dec- 
larations, and  conse(|uently,  they  must  independently  contain  all 
necessary  allegations,  or  the  latter  count  must  expressly  refer  tp 
the  former."  In  Barlow  v.  Burns,  40  Cal.,  351,  this  rule  is  rec- 
ognized and  approved.  And  in  other  states,  whose  codes  contain 
the  precise  provision  found  in  our  own,  that  each  cause  of  action 
"must  be  separately  stated,"  it  has  been  held,  so  far  as  we  have 
observed,  that  each  count  must  contain  all  the  facts  necessary  to 
constitute  a  cause  of  action ;  and  that  its  defects  cannot  be  sup- 
plied from  statements  outside  of  it,  unless  expressly  referred  to 
in  it ;  and  not  then,  if  the  matters  omitted  relate  to  the  gravamen 
of  the  action.  Treating  the  allegations  in  the  first  count,  as  to 
marriage  and  residence,  as  mere  matters  of  inducement,  they 
should  have  been  repeated  or  referred  to  in  the  subsequent  count, 
and  the  omission  to  either  repeat  or  refer  to  them  is  fatal;  be- 
cause  without  those  allegations  the  complaint  fails  to  state  facts 
sufficient  to  constitute  a  cause  of  action. 

We  are  unable  to  discover  any  other  error  in  the  record.  For 
those  above  pointed  out,  the  judgment  must  be  reversed. 

%^    ^^' 

J^       CURTIS  v.  MOORE. 
15  Wis.,  134.     [1862.] 

'Appeal  from  an  order  overruling  a  demurrer  to  a  complaint 
in  an  action  for  slander. 

Dixon,  C.  J.  *  *  *  The  complaint  in  this  action  contains 
three  counts,  charging  the  speaking  of  the  slanderous  words  at 
different  times  and  in  the  presence  of  different  individuals;  the 


gEC.  3.]  CURTIS   V.    MOORE.  495 

matter  of  indiicemeut  prior  to  the  colloquium  such  as  the  pend- 
ency of  the  action  before  the  justice,  the  calling  of  the  plaintifE 
as  a  witness,  etc.,  being  stated  only  in  the  first.  The  second  and 
third  counts  refer  to  the  first.  In  thf  first,  the  words  are 
charged  to  have  been  s-poken  in  the  presence  of  one  Peter 
Sprague  and  divers  other  citizens,  but  the  words  and  hearing 
are  omitted.  This  is  said  to  be  fatal  to  this  count.  The  others 
are  not  objected  to.  The  demurrer  is  to  the  whole  complaint.  It 
is  an  elementary  principle,  that  if  one  of  several  counts  in  a 
ripplnratiou  be  proved  (although  the  proof  of  all  the  othens  shQUlq 
7>^ii  whp  party  must  recover  upon  it,  unless  it  be  radically  in- 
i^cientjnjaw.  For  by  maintaining  one  good  count,  he  estab- 
lishes a  complete  right  of  recovery.  And  for  the  same  reason, 
if,  on  demurrer  to  the  whole  "declaration,  any  one  of  the  counts^ 
is'  adjudged  sufficient  in  law,  the  plaintiff  will  be  entitled  toC 
judgment  on  that  count,  though  all  the  others  be  defective.J 
Gould's  PI.,  ch.  IX,  §  1;  1  Chitty's  PL  664. 

But  it  is  urged  that  as  the  matters  of  inducement  are  stated 
in  the  first  count  only,  if  that  be  defective,  the  others  must  fail 
also— that  no  reference  can  be  made  to  such  inducement  for  the 
purpose  of  sustaining  them.    And  we  are  referred  to  Nelson  v. 
Swan,  13  Johns.  483,  where  it  was  held,  on  a  demurrer  to  the 
whole  declaration,  one  count  being  confessedly  bad,  reference 
could  not  be  made  to  it  for  the  purpose  of  aiding  the  other.    It_  q^  y^^,^ 
is  undoubtedly  true,  as  a  general  rule,  that  each  count  must   cjjv^--^^  - 
stand  or  fall  by  itself,  and  that  one  cannot  be  helped  out  bv  the_  ^^^.  ^^^ 
allegations  of  another.     In  that  case,  each  count,  taken  by  it-  U^.6->.c»-^ 
self"  was  bad  in  substance,  and  the  court  very  properly  decided   ^^^  «.   >. 
that  they  could  not  look  to  the  first  for  the  sake  of  supplying  es^^^oiA^  ' 
the  defects  of  the  second  in  matters  relating  to  the  gravamen  of     ^^^.^^.^^ 
the  action.    But  in  matters  of  mere  inducement  the  question  is 
qiiTte  different.     It  is  not  only  allowable,  but  correct  practice 
requires,  to  avoid  unnecessary  repetition  of  the  same  matter, 
that  in  the  subsequent  counts  reference  should  be  made  to  the 
first,  where  the  inducement  is  the  same,  in  which  case  it  is  con- 
si  riprpd_fl^s_vF  it  were  repeated  in  each  count.    1  Chitty's  PI.  473. 
The  fii^  count  may,  therefore,  fail  as  to  the   cause   of   action 
stated  in  it,  and  yet  stand  good  as  to  the  inducement  in  aid  of 
the  others.    If  it  be  conceded  that  the  first  count  is  bad,  a  ques- 
tion which  we  do  not  examine,  the  demurrer  must  still  be  over- 
ruled     *     *     *  Order  affirmed. 


496  THE  COMPLAINT.  [ClIAP.  III. 

JASPER  V.  IIAZEN. 

2  North  Dakota  401.     [1892.] 

"Wallin,  J.  The  complaint  in  this  action  contains  three 
causes  of  action,  and  each  is  separately  stated.  The  first  cause 
of  action  is  voluminous,  but  it  need  not  be  set  out  in  full  in  or- 
der to  understand  the  questions  involved  in  this  appeal.  The 
first  cause  of  action  is  fairly  summarized  in  appellant 's  brief  as 
follows:  "Plaintiff  having-  made  to  defendant  an  absolute  con- 
veyance of  his  farm  to  secure  the  latter  against  liability  as  plain- 
tiff's bail,  and  defendant  having  been  fully  exonerated  as  such 
bail,  plaintiff  thereupon  became  entitled  to  a  reconveyance ;  but, 
being  in  jail,  and  unable  to  attend  to  his  business  affairs  in  per- 
son, he  was  persuaded  to  let  defendant  retain  the  title  to  the 
farm  and  take  possession  thereof,  with  the  personal  property 
thereon,  upon  trust,  to  take  charge  of,  work,  and  operate  said 
farm,  pay  off  and  discharge  the  incumbrances  thereon,  and,  upon 
the  expiration  of  plaintiff's  imprisonment,  to  reconvey  the  farm, 
restore  the  personal  property,  and  fully  account  to  the  plaintiff. 
It  is  alleged  that  defendant  violated  said  trust  by  appropriating 
the  subject  thereof  to  his  own  use,  and  refusing  to  account ;  and 
an  accounting  is  prayed  for."  The  second  cause  of  action  con- 
tains a  restatement  of  the  principal  facts  alleged  in  the  first, 
adding,  however,  a  detailed  description  of  the  personal  property 
which  it  is  stated  the  plaintiff  then  had  in  his  possession  on  the 
farm,  and  then  intrusted  to  defendant's  keeping,  to  be  held  in 
trust,  as  stated  in  the  first  cause  of  action.  Such  personal  prop- 
erty consisted  wholly  of  farm  property,  animals,*  and  household 
efii'ects  then  upon  the  farm.  No  note  was  mentioned.  The  per- 
sonal property  is  alleged  to  be  of  the  value  of  $1,275,  excluding 
the  value  of  the  note,  and  the  allegation  is  reiterated  that  de- 
fendant has  converted  both  the  land  and  the  personal  property 
to  his  own  use,  and  has  failed  and  refused  to  account.  As  the 
contention  turns  especially  upon  the  third  cause  of  action,  we 
give  it  in  full:  "For  a  third  cause  of  action,  plaintiff  makes 
part  thereof  each  and  every  allegation  contained  in  the  first  and 
second  causes  of  action  herein,  so  far  as  the  same  set  forth  the 
promises  and  agreements  made  by  and  between  the  plaintiff  and 
defendant,  and  the  obligations  arising  therefrom;  and  further 
alleges  (1)  that  on  the  said  20th  day  of  March,  1885,  plaintiff 


Sec.  3.]  jasper  v.  hazen.  497 

was  the  owner  of  a  promissory  note  theretofore  executed  to 
plaintiff  by  one  L.  M.  Kimball,  whereby  said  Kimball  promised 
to  pay  the  plaintiff  the  sum  of  seventy-five  dollars  on  a  certain 
day  in  the  fall  of  the  year  1885,  the  exact  date  of  the  maturity 
of  which  note  the  plaintiff  does  not  now  remember;  (2)  that  at 
the  said  time  the  said  note  was  in  the  possession  of  Fuller, 
Johnson  &  Co.,  and,  after  plaintiff's  removal  to  the  penitentiary, 
defendant,  by  means  unknown  to  plaintiff",  obtained  possession 
of  said  note,  and  collected  the  amount  thereof  from  said  Kim- 
ball, and  converted  the  same  to  his  own  use,  to  plaintiff's  dam- 
age seventy-five  dollars;  (3)  that  prior  to  the  commencement 
of  this  action  plaintiff'  demanded  of  the  defendant  the  said 
money  so  collected,  but  that  defendant  refused  to  pay  the  same 
or  in  any  wise  to  account  therefor  to  plaintiff."  The  prayer  is 
that  defendant  be  required  to  account  for  the  proceeds  of  the 
farm,  and  also  for  the  proceeds  of  the  personal  property,  in- 
cluding the  note,  with  interest.  The  following  details,  which 
also  appear  by  the  complaint,  may  here  be  conveniently  grouped, 
viz.:  That  the  deed  of  plaintiff' 's  farm  was  delivered  to  de- 
fendant on  March  20,  1885,  that  the  trust  agreement  was  en- 
tered into  on  April  20,  1885;  that  the  farm  and  farm  property 
before  mentioned  was,  in  furtherance  of  the  trust,  turned  over 
to  the  defendant  on  May  20,  1885,  The  plaintiff  was  convicted 
and  sent  to  the  penitentiary  in  June,  1885,  and  he  was  not  re- 
leased until  March,  1888.  Defendant  demurred  to  the  com- 
plaint, setting  up  the  following  ground :  ' '  That  it  appears  upon 
the  face  of  the  complaint  that  several  causes  of  action  have  been 
improperly  united  therein,  to-wit :  a  cause  of  action  against  said 
defendant  in  the  character  of  trustee  for  an  accounting,  and  a 
cause  of  action  at  law  against  said  defendant  for  the  conversion 
of  a  promissory  note."  The  district  court  overruled  the  de- 
murrer, and  the  defendant  appealed  from  its  order,  and  assigns 
it  as  error. 

The  single  question  for  determination  is  whether  the  acts  and 
transactions  of  the  defendant  in  relation  to  the  $75  note,  which 
are  stated  separately  as  the  third  cause  of  action,  are  properly 
united  in  the  same  complaint  with  those  other  matters  and  tran- 
sactions which  are  set  out  in  the  first  and  second  causes  of  ac- 
tion. The  matters  set  out  in  the  first  and  second  causes  of  ac- 
tion are  confessedly  and  clearly  of  a  character  which  involve  a 
relation  of  trust  between  the  parties  to  the  action,  and  hence,  as 


498  THE  COMPLAINT.  fClIAI*.  III. 

was  held  by  this  court  on  a  former  appeal  of  this  action,  such 
matters  must  be  heard  and  disposed  of  by  a  court  of  equity,  and 
pot  by  a  court  of  law.  44  N.  \Y.  Rep.  1018;  1  N.  Dak.  75.  All 
of  the  claims  of  the  plaintiff  against  the  defendant,  as  stated  in 
the  first  and  second  causes  of  action,  are  clearly  such  as  may  be 
united  in  one  complaint  against  a  trustee  as  such.  Subdivision 
7,  §136  Code  Civil  Proc.  (Comp.  Laws,  §4932,)  expressly  pro- 
vides that  several  causes  of  action  may  be  united  in  a  complaint 
where  they  are  "claims  against  a  trustee  by  virtue  of  a  con- 
tract, or  by  operation  of  law."  From  this  it  appears  that  only 
such  claims  as  are  against  "a  trustee"  can  be  united  in  an  action 
against  a  trustee,  as  such.  It  follows  that  unless  the  $75  note 
transaction  is  a  claim  against  the  defendant  as  a  trustee,  it  can- 
not be  united  in  the  same  action  with  the  other  claims  against 
the  defendant  in  that  capacity.  If  the  facts,  as  pleaded  in  the 
third  cause  of  action  show  a  trust  relation  with  respect  to  the 
$75  note  transaction,  whereby  a  claim  in  plaintiff's  favor  against 
the  defendant  as  trustee  is  established,  then  it  follows  that  the 
third  cause  of  action  is  properly  united  with  the  others;  other- 
wise such  note  transaction  is  improperly  united.  We  are  entirely 
clear  that  the  facts  pleaded  as  a  third  cause  of  action  do  not 
show  a  claim  against  the  defendant  as  trustee.     *     *     * 

*  *  *  Counsel  further  argues  that  the  first  paragraph  of 
the  third  cause  of  action  carries  forward  and  incorporates  with 
that  cause  of  action  all  allegations  in  the  first  and  second  causes 
of  action,  "so  far  as  the  same  set  forth  the  promises  and  agree- 
ments made  by  and  between  plaintiff  and  defendant,  and  the 
obligations  arising  therefrom."  As  already  shown,  there  are 
no  averments  of  the  complaint  connecting  the  note  transaction 
with  any  trust  between  the  parties;  but  we  deem  it  proper  to 
add  that  the  language  quoted  above  cannot,  under  the  rules  of 
pleading,  operate  to  make  any  allegations  of  the  first  and  sec- 
ond causes  of  action  a  part  of  the  third.  Each  cause  of  action 
must  be  complete  in  itself,  but  some  courts  permit  a  reference  to 
be  made  to  distinct  allegations  or  separate  paragraphs  in  a  pre- 
■i  ceding  cause  of  action,  where  the  same  embody  distinct  aver- 
ments~orfact,  and  by  such  reference  TealIeg£IEe_same  facts  in 
a  later  cause  of_actiom  This  is  perhaps  the  better  rule.  It  ap- 
pears to  be  the  rule  in  New  York.  Simmons  v.  Fairchild,  42 
Barb.  404 ;  Manufacturing  Co.  v.  Beecher,  55  How.  Pr.  193.  But 
a  recent  ease  in  California  is  strongly  adverse  to  such  a  rule. 


Sec.  3.] 


JASPER    V.    HAZEN. 


499 


Pennie  v.  Hildreth  (Cal.)  22  Pac.  Rep.  398.  But  no  authority 
can  be  found  which  will  support  the  language  in  question  as 
a  proper  mode  of  alleging  a  fact  by  reference  to  the  preceding 
parts  of  the  complaint.  The  reference  does  not  point  out  any 
particular  averment,  paragraph,  or  part  of  the  complaint  by 
number,  page,  or  otherwise;  but  it  leaves  court  and  counsel  to 
explore  the  voluminous  matter  referred  to  in  quest  of  ''prom- 
ises  and  agreements."  and,  if  any  promises  and  agreements  are 
found,  then  to  scrutinize  the  same  closely  in  quest  of  "obliga- 
tions" arising  thereon.  It  is  obvious  that  such  a  vague  refer- 
ence to  preceding  parts  of  the  complaint  is  quite  ineffectual  to 
£oint  out  any  particular  averments  of  fact  which  the  Dleader 
desires  to  reallege  as  a  part  of  the  third  cause  of  action;  and 
consequently  the  first  paragraph  of  the  third  cause  of  action 
must  be  eliminated,  or  not  considered,  as  an  additional  averment 
of  fact.  But  this  in  no  way  affects  the  disposition  of  the  case, 
for,  as  has  been  seen,  we  should  reach  the  same  conclusion  if 
all  of  the  preceding  parts  of  the  complaint  were  restated  in 
the  third  cause  of  action.  Our  view  of  the  case  will  render 
necessary  the  framing  of  a  new  complaint ;  and  to  avoid  further 
delays,  occasioned  by  mistakes  of  procedure,  we  now  take  occa- 
sion to  suggest  that  in  our  opinion  the  series  of  transactions 
which  are  set  out  in  the  first  and  second  causes  of  action  (while 
they  include  matters  relating  to  both  real  estate  and  personal 
property,  and  the  title  and  management  of  both)  form  only  a 
single  trust  arrangement,  and  the  refusal  to  account  gives  rise 
to  only  a  single  cause  of  action  or  claim  against  the  defendant 
as  trustee.  If  it  be  true,  by  reason  of  existing  facts  which  are 
not  alleged  in  the  complaint  before  us,  that  the  note  was  taken 
possession  of  by  defendant  under  color  of  the  trust  arrange- 
ment set  out  in  the  first  and  second  causes  of  action,  then  the 
note  matter  can  be  investigated  as  an  item  in  that  trust  arrange- 
ment, despite  the  fact  that  the  note  may  not  have  been  deliv- 
ered to  the  defendant  with  the  other  trust  property.  In  no 
event  should  the  note  matter  be  pleaded  as  an  independent  cause 
of  action  against  the  defendant  as  trustee,  unless  the  note  trans- 
action, by  reason  of  its  own  peculiar  facts,  gives  rise  to  a  dis- 
tinct and  separate  trust,  and  thereby  becomes  the  source  of  an 
independent  claim  against  the  defendant  in  his  fiduciary  cay 
pacity.  The  assignment  of  error  is  sustained,  and  the  order  of 
the  district  court  must  be  reversed.    All  concur. 


v<C 


.V 


500  THE  COMPLAINT.  [ChAP.  III. 


(b)     What  Are  Separate  Causes  of  Action?. 
SECOR  V.  STURGIS. 

16N.Y.548.     [1858.]* 


> 


Strong,  J.  It  Ls  not  controverted  that  the  account,  the  amount 
of  which  is  sought  to  be  recovered  in  this  action,  was  due  to  the 
plaintiffs,  and  a  lien  on  the  vessel,  at  the  time  of  the  application 
for  the  attachment,  and  also  at  the  time  of  the  execution  of  the 
bond  on  which  this  action  is  founded ;  but  it  is  insisted  that  the 
said  account,  and  the  account  for  which  judgment  was  recov- 
ered in  the  district  court  of  the  United  States,  together,  consti- 
tuted a  single  cause  of  action,  and  that  the  judgment  for  part 
of  it  is  a  bar  to  a  recovery  in  this  action  for  the  residue.  The 
answer  does  not  in  express  terms,  allege  that  the  cause  of  action 
in  the  suit  in  the  district  court  was  the  same  as  that  in  the  pres- 
ent suit,  but  it  was  treated  in  the  reply  as  containing  substan- 
tially that  allegation,  and  must  therefore  be  so  regarded  by  the 
court.  It  was  essential,  in  order  to  present  the  question  raised, 
that  the  identity  of  the  cause  of  action  in  the  different  suits 
should,  in  some  form,  be  averred  in  the  answer.  (3  Chit.  PI. 
928-9;  Philips  v.  Berick,  16  Johns.  137,  140.) 

The  principle  is  settled  beyond  dispute  that  a  judgment  con- 
cludes the  rights  of  parties  in  respect  of  the  cause  of  action 
stated  in  the  pleadings  on  which  it  is  rendered,  whether  the  suit 
embraces  the  whole  or  only  part  of  the  demand  constituting  the 
cause  of  action.     It  results  from  this  principle,  and  the  rule  is 
fully  established,  that  an  entire  claim,  arising  either  upon  a  con- 
tract or  from  a  wrong,  cannot  be  divided  and  made  the  sub- 
ject of  several  suits:  and  if  several  suits  be  brought  for  dif- 
ferent parts  of  such  a  claim,  the  pendency  of  the  first  mav  be_ 
pleaded  in  abatement  of  the  others^  and  a  judgment  upon  the 
merits  in  either  will  be  available  as  a  bar   in   the   other   suits. 
(Farrington  v.  Payne,  15  John.  432;  Smith  v.  Jones,  id.  229 
Philips  V.  Berick,  16  id.  137 ;  Miller  v.  Covert,    1    Wend.    487 
Guernsey  v.  Carver,  8  id.  492 ;  Stevens  v.  Lockwood,  13  id.  644 
Colvin  V.  Corwin,  15  id.  557;  Bendernagle  v.  Cocks,  19  id.  207, 
and  cases  there  cited.)     But  it  is  entire  claims  only  which  can- 
not be  divided  within  this  rule,  those  which  are  single  and  in- 


*The  statement  has  been  omitted. 


Sec.  3.]  secor  v.  sturgis.  501 

divisible  in  their  nature.  The  cause  of  action  in  the  different 
suits  must  be  the  same.  The  rule  does  not  prevent,  nor  is  there 
any  principle  which  precludes,  the  prosecution  of  several  actions 
upon  several  causes  of  action.  The  holder  of  several  promissory 
notes  may  maintain  an  action  on  each ;  a  party  upon  whose  per- 
son or  property  successive  distinct  trespasses  have  been  commit- 
ted may  bring  a  separate  suit  for  every  trespass;  and  all  de- 
mands, of  whatever  nature,  arising  out  of  separate  and  distinct 
transactions,  may  be  sued  upon  separately.  It  makes  no  differ- 
ence that  the  causes  of  action  might  be  united  in  a  single  suit ; 
the  right  of  the  party  in  whose  favor  they  exist  to  separate  suits 
is  not  affected  by  that  circumstance,  except  that  in  proper  cases, 
for  the  prevention  of  vexation  and  oppression,  the  court  will 
enforce  a  consolidation  of  the  actions. 

It  is  not,  as  will  be  seen  by  the  cases,  always  easy  to  determine 
whether  separate  items  of  claim  constitute  a  single  or  separate 
cause  of  action;  and  this  difficulty,  connected  with  neglect,  in 
some  instances,  of  proper  attention  to  the  principle  of  the  rule 
under  consideration,  has  led  to  some  loose  expressions  and  con- 
fusion in  the  books  on  this  subject.  Farrington  v.  Payne  was  a 
plain  case  of  an  indivisible  cause  of  action.  A  bed  and  bed 
quilts  were  taken  at  the  same  time,  and  by  the  same  act,  and  a 
recovery  in  trover  for  the  quilts  was  held  a  bar  to  a  recovery 
in  trover  for  the  bed.  In  Smith  v.  Jones,  actions  were  brought 
for  goods  sold  and  delivered,  the  plaintiff,  in  one,  claiming  to 
recover  for  one  barrel  of  potatoes,  and  in  the  other  for  two  bar- 
rels of  the  same  article,  all  sold  at  the  same  time.  The  court 
held  that  the  demand  could  not  be  divided  into  separate  suits. 
This  was  also  a  plain  case  of  one  cause  of  action.  ]\Iiller  v.  Co- 
vert, in  which  the  same  rule  was  applied,  was  a  case  of  a  sale 
of  hay,  under  a  contract,  delivered  in  parcels.  The  demand  was 
held  to  be  entire  and  indivisible. 

In  Guernsey  v.  Carver,  the  plaintiff  declared  on  a  book  ac- 
count consisting  of  items  of  merchandise  delivered  between  the 
20th  of  July  and  the  27th  of  August,  1828,  amounting  to  $2.35. 
The  defendant  pleaded  a  former  suit  for  the  same  identical 
cause  and  causes  of  action.  It  was  proved  in  the  Common  Pleas 
that  the  plaintiff  had  an  account  against  the  defendant,  con- 
sisting of  twenty  different  articles  of  merchandise,  delivered  on 
fourteen  different  days  between  the  4th  of  June  and  the  27th  of 
August,  1828,  amounting  to  between  $5  and  $6;  that  he  com- 


502  THE  COMPLAINT.  [ChAP.  III. 

menced  a  suit  against  the  defendant,  and  exhibited  an  account 
of  items  delivered  between  the  first  of  June,  and  the  19th  of 
July,  1828,  amounting  to  274,  that  the  defendant  pleaded  a 
tender  in  such  suit,  and  obtained  judgment  for  costs.  The  plain- 
tiff then  sued  for  the  balance  of  such  account,  viz.,  for  items  de- 
livered between  the  20th  of  July  and  the  27th  of  August.  The 
common  pleas  decided  that  on  a  running  account,  where  no  spe- 
cial contract  was  made  at  the  commencement  of  the  account,  and 
where  items  have  been  delivered  on  such  account  at  different 
times,  without  any  intermediate  agreement,  each  sparate  de- 
livery formed  a  separate  and  distinct  cause  of  action,  and  that 
separate  suits  might  be  maintained  on  each  separate  delivery; 
and  the  plaintiff  recovered  judgment.  On  appeal  to  the  supreme 
court  the  judgment  was  reversed.  The  court,  by  Nelson,  J., 
after  stating  that  it  was  settled  in  that  court  that  if  a  plaintiff 
bring  an  action  for  a  part  only  of  an  entire  and  indivisible  de- 
mand, the  judgment  in  that  action  is  a  conclusive  bar  to  a  sub- 
sequent suit  for  another  part  of  the  same  demand,  says :  ' '  This 
case  comes  within  the  reason  and  spirit  of  that  principle.  The 
whole  account  being  due  when  the  first  suit  was  brought,  it 
should  be  viewed  in  the  light  of  an  entire  demand,  incapable  of 
division,  for  the  purpose  of  prosecution.  The  law  abhors  a  mul- 
tiplicity of  suits.  According  to  the  doctrine  of  the  court  below, 
a  suit  might  be  sustained,  after  the  whole  became  due,  on  each 
separate  item  delivered,  and  if  any  division  of  the  account  is 
allowable  it  must  no  doubt  be  carried  to  that  extent.  Such  a 
doctrine  would  encourage  intolerable  oppression  upon  debtors, 
and  be  a  just  reproach  upon  the  law.  The  only  just  and  safe 
rule  is  to  compel  the  plaintiff,  on  an  account  like  the  present,  to 
include  the  whole  of  it  due  in  a  single  suit. ' '  The  reasoning  of 
the  learned  justice  would  make  every  account  consisting  of  diF 
ferent  items,  the  whole  of  which  is  due,  an  entire  demand  in- 
capable of  division  for  the  purpose  of  prosecution  irrespective  of 
every  other  consideration.  It  excludes  the  idea  that  it  is  neces- 
sary the  claims  should  have  arisen  out  of  a  single  transaction, 
or  be  connected  together  by  contract.  This,  in  my  opinion,  is 
carrying  the  doctrine  in  question  far  beyond  its  just  limits. 
Stevens  v.  Lock  wood  was  a  case  similar  to  the  last,  and  decided 
upon  similar  views.  These  cases  may  have  been  rightly  decided, 
but  I  cannot  assent  to  all  the  reasons  given  for  the  decisions. 
In  Colvin  v.  Corwin,  two  suits  were  brought  for  lottery  tick- 


Sec.  3.]  secor  v.  sturgis.  503 

ets  sold  the  defendant.  On  the  trial  of  the  first  the  defendant 
admitted  he  had  bought  the  tickets  alleged  to  have  been  sold  to 
him,  and  judgment  was  rendered  for  the  plaintiff.  The  judg- 
ment was  set  up  as  a  bar  in  the  second  suit,  and  on  the  trial  it  ^^ ^^^*^ 

appeared  that  the  tickets  claimed  in  the  suits  were  delivered  to' 
the  defendant  by  two  different  agents  of  the  plaintiff,  at  dif- 
ferent offices  occupied  by  them,  at  different  times,  and  it  was 
held  by  the  Supreme  Court  that  the  previous  judgment  was  a  bar 
to  a  recovery.  It  is  manifest  that  this  decision  rests  on  oo  sound 
principle,  and  is  not  law.  A  plainer  case  of  distinct  independent 
causes  of  action  could  hardly  be  presented. 

Bendernagle  v.  Cocks,  was  an  action  for  breaches  of  certain 
covenants  contained  in  an  indenture  of  lease,  A  plea  in  abate- 
ment was  interposed  of  an  action  pending  upon  the  same  lease 
for  the  alleged  breach  by  the  defendant  of  covenants  therein.  It 
is  stated  in  the  reporter's  note,  that  all  the  causes  of  action  had 
accrued  at  the  time  of  the  bringing  of  the  first  action.  The 
plaintiff  replied  that  the  covenants,  for  the  breach  of  which  the 
first  suit  was  brought,  were  other,  distinct  and  different  from 
the  covenants  for  the  breach  of  which  the  second  suit  was 
brought.  The  defendant  demurred,  and  the  common  pleas  over- 
ruled the  demurrer,  but  the  supreme  court  reversed  the  judg- 
ment. Cowen,  J.,  who  delivered  the  opinion  of  the  court,  re- 
views and  comments  upon  many  of  the  cases,  after  which  he 
makes  the  following  observation:  "I  admit  that  the  rule  does 
not  extend  to  several  and  distinct  trespasses  or  other  wrongs, 
nor,  as  we  have  seen,  to  distinct  contracts.  It  goes  against  sev- 
eral actions  for  the  same  wrong,  and  against  several  actions  on 
the  same  contract.  All  damages  accruing  from  a  single  wrong, 
though  at  different  times,  make  but  one  cause  of  action,  and  all 
debts  or  demands  already  due  by  the  same  contract  make  one 
entire  cause  of  action.  Each  comes  under  the  familiar  rule  that 
if  a  party  will  sue  and  recover  for  a  portion,  he  shall  be  barred 
of  the  residue.  Proof  of  that  fact  would  sustain  the  common 
issue  presented  in  Bagot  v.  Williams,  that  the  plaintiff  had  be- 
fore impleaded  the  defendant,  and  recovered  for  the  same  iden- 
tical cause  of  action,"  etc. 

The  true  distinction  between  demands  or  rig^fs  of  ^ction 
which  are  single  and  entire,  and  those  which  are  several  and  dis- 
tinct is,  that  the  former  immediately  arise  out  of  one  and  the 
same  act  or  contract,  and  the  latter  out  of  different  acts  or  con- 


504  THE  COMPLAINT.  [ClI.VP.  III. 

tracts.  Perhaps  as  simple  and  safe  a  test  as  the  subject  admits 
of,  by  which  to  determine  whether  a  case  belongs  to  one  class  or 
the  other,  is  by  inquiring  whether  it  rests  upon  one  or  several 
acts  or  agreements.  In  the  case  of  torts,  each  trespass,  or  con- 
version, or  fraud,  gives  a  right  of  action,  and  but  a  single  one, 
however  numerous  the  items  of  wrong  or  damage  may  be ;  in  re- 
spect to  contracts,  express  or  implied,  each  contract  affords  one 
and  only  one  cause  of  action.  The  case  of  a  contract  containing 
several  stipulations  to  be  performed  at  different  times  is  no  ex- 
ception; although  an  action  may  be  maintained  upon  each  stip- 
ulation as  it  is  broken,  before  the  time  for  the  performance  of 
the  others,  the  ground  of  action  is  the  stipulation  which  is  in  the 
nature  of  a  several  contract.  Where  there  is  an  account  for 
goods  sold,  or  labor  performed,  where  money  has  been  lent  to  or 
paid  for  the  use  of  a  party  at  different  times,  or  several  items  of 
claim  spring  in  any  way  from  contract,  whether  one  only  or  sep- 
arate rights  of  action  exist,  will,  in  each  case,  depend  upon 
whether  the  case  is  covered  by  one  or  by  separate  contracts.  The 
several  items  may  have  their  origin  in  one  contract,  as  on  an 
agreement  to  sell  and  deliver  goods,  or  perform  work,  or  advance 
money;  and  usually,  in  the  case  of  a  running  account,  it  may 
be  fairly  implied  that  it  is  in  pursuance  of  an  agreement  that 
an  account  may  be  opened  and  continued,  either  for  a  definite 
period  or  at  the  pleasure  of  one  or  both  of  the  parties.  But 
there  must  be  either  an  express  contract,  or  the  circumstances 
^ust  be  such  as  to  raise  an  implied  contract^  embracing  all  the 
items,  to  make  them,  where  they  arise  at  different  times,  a  single 
or  entire  demand  or  cause  of  action. 

Applying  this  test  to  the  present  case,  it  is  very  clear  that  the 
two  accounts  did  not  constitute  an  entire  claim;  but,  on  the  con- 
trary, that  they  were  several  and"  formed  two  several  causes  of 
action.  The  business  of  the  plaintiffs  consisted  of  two  branches, 
which  were  designed  to  be  and  were  kept  entirely  distinct,  in 
each  of  which  one  of  the  accounts  vras  made^  and  an  arrange- 
ment was  entered  into  under  which  one  of  the  accounts  arose 
anterior  to  the  opening  of  the  other  account.  Here  was  no  ex- 
press contract  connecting  the  two  accounts;  and  the  facts,  in- 
stead of  warranting  the  presumption  of  such  a  contract,  show 
that  separate  agreements  only,  one  in  regard  to  each  account, 
were  intended.     *     *     * 

Judgment  affirmed. 


-^L*©-'^  Nn3*--cC'><-v^-> 


Sec.    3.  J  BRUNSDEN    V.    HUMPHREY.  505 

BRUNSDEN  v.  HUMPHREY. 

U  Q.  B.  D.  141.  (C.  A.)   [1884.]* 

Appeal  of  the  plaintiff  against  an  order  of  the  Queen's  Bench 
Division  making  absolute  a  rule  to  enter  judgment  for  the  de- 
fendant. 

BowEN,  L.  J.     The  plaintiff  in  this  case  has  recovered  a  ver- 
dict and  £350  damages  for  personal  injuries  sustained  by  him 
through  the  negligence  of  the  defendant's  servant  in  driving  a 
van,  which  had  come  into  collision    with    the    plaintiff's    cab, 
thrown  the  plaintiff  from  the  box  and  seriously  injured  him  in 
his  legs.     Previously  to  bringing  the  action  the  plaintiff  had 
sued  the  defendant  in  the  county  court  for  damages  done  to  his 
cab  in  the  collision,  and  the  particulars    delivered    under    his 
plaint  had  been  confined  to  the  damage  which  the  cab  had  sus- 
tained.    The  defendant  in  the  county  court  action  paid  £4  3s 
into  court  together  with  6s  costs,  upon  which  the  plaintiff  had 
discontinued  the  county  court  plaint.     The  present  action  was 
now  brought  in  the  high  court  for  personal  injuries,  of  the  im- 
portance and  extent  of  which  the  plaintiff  alleged  that  he  had 
been  ignorant  of  at  the  time  of  the  county  court  proceedings. 
On  a  motion  for  a  new  trial  the  court  below  have  entered  a 
judgment  for  the  defendant  on  the  ground  that  the  recovery  of 
damages  in  respect  of  the  cab  in  the  county  court  is  a  bar  to  any 
further  action  for  injury  to  the  plaintiff's  person.    The  rule  of 
the  ancient  common  law  is  that  where  one  is  barred  in  any  action 
real  or  personal  by  judgment,  demurrer,  confession  or  verdict,  he 
is  barred  as  to  that  or  the  like  action  of  the  like  nature  for  the 
same  thing  forever.    ''It  has  been  well  said"  (says  Lord  Coke  in 
a  note  to  Ferrer's  case,  6  Coke,  9  a),  "jyiterest  republiccu  ut  sit 
finis  litium,  otherwise,"  says  Lord  Coke  "great  oppression  might 
be  done  under  color  and  pretence  of  law;"  (see  also  Sparry 's 
ease  (5  Coke,  61  a)  :  Higgin's  case  (6  Coke  45  a)  ;  Year  Book, 
12  Edw.  IV,  p.  13,  10.)     Accordingly  in  Hudson  v.  Lee  (4  Coke 
43  a),  it  was  held  to  be  a  good  plea  in  bar  to  an  appeal  of  may- 
hem,  that  the  appellant  had  recovered  damages  in  an  action  for 
trespass  brought  for  the  same  assault,  battery,  and  wounding.  So 
in  Bird  v.  Randall  (3  Burr.  1345)  it  was  decided  to  be  an  an- 

*The  opinion  of  Brett,  M.  R.,  and  the  dissenting  opinion  of  Lord 
Coleridge  have  been  omitted. 


506  THE    COMPLAINT.  [ChAP.  III. 

swer  to  an  action  for  seducing  a  man's  servant  from  his  service, 
that  penalties  had  previously  been  recovered  by  the  master,  in 
satisfaction  of  the  injury  done  him.  So  too  in  Phillips  v.  Berry- 
man  (3  Doug.  287),  a  recovery  in  replevin  was  held  to  be  a  good 
bar  to  an  action  on  the  statute  of  INIarlbridge  for  an  excessive  dis- 
tress, on  the  ground  that  the  plaintiff  had  already  had  his  rem- 
edy, and  that  a  recovery  in  one  personal  action  is  bar  to  all  other 
personal  actions  on  the  same  subject.  The  principle  is  frequently 
stated  in  the  form  of  another  legal  proverb,  7iemo  debet  bis  vex- 
ari  pro  eadem  causa.  It  is  a  well  settled  rule  of  law  that  damages 
resulting  from  one  and  the  same  cause  of  action  must  be  assessed 
and  recovered  once  for  all.  The  difficulty  in  each  instance  arises 
upon  the  application  of  this  rule,  how  far  is  the  cause  which  is 
being  litigated  afresh  the  same  cause  in  substance  with  that 
which  has  been  the  subject  of  the  previous  suit.  ' '  The  principal 
consid e ratiQii, "  says  De  Grey,  C.  J.,  in  Kitchen  v.  Campbell  (2 
W.  Bl.,  827),  ' '  is  whether  it  be  precisely  the  same  cause  of  action_ 
in  both,  appearing  by  proper  averments  in  a  plea,  or  by  proper 
facts  stated  in  a  sppf^ial  verdiet^  nr  a  special  case.''  '*And  one 
great  criterion^"  he  adds,  "of  this  identity  is  that  the  same 
evidence  will  maintain  both  actions."  See  per  Lord  Eldon  in 
Martin  v.  Kennedy  (2  B.  &  P.,  71).  "The  question,"  says  Grose, 
J.  in  Sedon  v.  Tutop  (6  T.  R.,  607)  "is  not  whether  the  sum  de- 
manded might  have  been  recovered  in  the  former  action,  the  only 
inquiry  is  w^hether  the  same  cause  of  action  has  been  litigated 
and  considered  in  the  former  action."  Accordingly  "though  a 
declaration  contain  counts  under  which  the  plaintiff's  whole 
claim  might  have  been  recovered,  yet  if  no  attempt  was  made  to 
give  evidence  upon  some  of  the  claims,  they  might  be  recovered 
in  another  action."  Thorpe  v.  Cooper  (5  Bing.,  129).  It  is  evi- 
dent therefore  that  the  application  of  the  rule  depends,  not  upon 
technical  consideration  of  the  identity  of  forms  of  action,  but 
upon  matter  of  substance. 

I  have  now  to  consider  the  application  of  the  above  doctrine 
to  the  case  of  the  present  action ;  and  the  question  to  be  decided 
is  whether  the  damage  done  by  the  negligent  driving  of  the  de- 
fendant's servant  to  the  plaintiff's  cab  is  in  substance  the  same 
cause  of  action  as  the  damage  caused  by  such  negligence  to  the 
plaintiff's  person.  Nobody  can  doubt  that  if  the  plaintiff  had 
recovered  any  damages  for  injury  to  his  person,  he  could  not 
have  maintained  a  further  action  for  fresh  bodily  injuries  caused 


^^^-   ^■]  BRUNSDEN   V.    HUMPHREY.  507 

by  the  same  act  of  negligence,  merely  because  they  had  been  dis- 
covered or  developed,  subsequently,  see  Fetter  v.  Beale  (1  Ld. 
Eaym.,  339).    "The  jury,"  says  the  court  in  that  ease,  "have  in 
the  former  action  considered  the  nature  of  the  wound  and  given 
damages  for  all  the  damage  that  it  had  done  to  the  plantiff  " 
This  authority  however  leaves  still  open  the  point  I  now  have  to 
determine,  whether  the  cause  of  action  arising  from  damage  to 
the   plaintiff's   cab   is  in  substance   identical  with  that  which 
accrues  m  consequence  of  the  damage  caused  to  his  person     In 
order  clearly  to  elucidate  this  question,  let  me  assume  for  the 
sake  of  argument  that  the  damage_had_been_^ausedbysome  act 
oi  the_defendanthimseif  _and  notmerely"^  act  of  Jiis  "^^?^i^ 
According  to  the  old  distinctions  of  forms  of  actions  which  ^U 
have  a  historical  value  as  throwing  light  upon  the  principles  and 
definitions  of  the  common  law,  the  Jormjof^  action  upon  such  an 
hypothesis  wouM  h_aYe_been  jtrespass  to  the  person  for  the  pe7- 
spnaMuiury^Jrespass  to__goods  for  the  dania-.  to  tlie~^^^h^ 
Injury  would  have  been  do^^TTo  the  nlnhitifV  ni  respeet~Zl^ 
absoluie_jt^gjindependent  rightiTthe  di.stinc-tion  between  whiX 
J|Jgve^^IoEE-m  English  ang^lli..  T. nn^^T^^^^^—- 
m  thisJ^mm^yTas  an  absolute  right  to  securifyT^-r  his  person 
Everybody  has  further  an  absolute  right  to  have  his  enjoyment 
ot  his  goods  and  chattels  unmeddled  with  by  others      In  the 
hypothetical  case  I  am  assuming  both  these  rights  would  have 
been  injured,  and  though  the  two  injuries  might  have  been  com- 
bined in  one  suit,  could  it  have  been  said  that  the  subject  mat- 
er of  each  grievance  was  the  same?    Applying  the  test  of  iden- 
tity furnished  by  De  Grey,  C.  J.,  in  Kitchen  v.  Campbell  2  W. 
BI.,  820,  the  first  matter  that  is  obvious  is,  that  the  same  evi- 
dence  would  not  have  supported  Rn..actLon  for  tr'^^^I^TTHh^ 
person  and  an  action  for  the  trespasstoThe  ^onr1«  <DTn  ,^.77Z: 
'^"^  *^^  Identity  of  the  man  injured  and  the  chTracter  of  his 
injuries  would  be  in  issue,  and  justifications  might  conceivably 
be  pleaded  as  to  the  assault,  which  would  have  nothing  to  do 
with  the  damage  done  to  the  goods  and  chattels.^^n  the  other 
case  the  plaintiffs'  title  to  the  goods  might  have  been  in  issue  in 
addition  to  the  question  of  the  damage  done  to  them^Different 
provisions   of  the   statute   of   notations   might   possibly  have 
applied  in  each  ease.    And  finalhS^the  damage  in  one  case  mi^ht 
have  been  directly  due  to  the  wrongful  act  complained  of  "in 
the  other  case  it  might  not.     There  is  no  authority  so  far  as  I 


508  THE    COMPLAINT.  [Ch.\P.  III. 

know  in  the  books  for  the  proposition,  that  a  recovery  in  an 
action  for  a  trespass  to  the  person  would  be  a  bar  to  the  main- 
tenance for  a  trespass  to  goods  committed  at  the  same  time.    In 
the  present  instance,  as  the  defendant  himself  was  not  driving 
but  hi7  servant^  trespass  would  not  have  lain  under  the  old  law, 
andlhe  plaintiff's  remedy  would  have  been  in  an  action  on  the 
case  forliegli gence,  based  on  the  negligent  management  by  the 
servant  of  his  master's  horses,  a  negligence  for  which  in  the  eye 
of  the  law  the  master  or  employer  is  responsible.    Now  what  is 
the  gist  of  such  an  action  on  the  case  for  negligence?     If  the 
whole  of  the  plaintiff's  case  were  to  be  stated  and  the  entire 
story  told,  it  seems  to  me  that  it  would  have  comprised  two  sep- 
arate or  distinct  grievances,  narrated,  it  is  true,  in  one  statement 
or  case.     Actions  for  the  negligent  management  of  any  animal, 
or  any  personal  or  moveable  chattel,  such  as  a  ship  or  machine, 
or  instrument,  all  are  based  upon  the  same  principle,  viz.,  that 
a  person,  who,  contrary  to  his  duty,  conducts  himself  negligently 
in  the  management  of  that  which  contains  in  itself  an  element  of 
danger  to  others,  is  liable  for  all  injury  caused  by  his  want  of 
care  or  skill.     Such  an  action  is  based  upon  the  union  of  the 
negligence  and  the  injuries  caused  thereby,  which  in  such  an 
instance  will  as  a  rule  involve  and  have  been  accompanied  by 
specific   damage.     Without  remounting  to  the  Roman  law,  or 
discussing  the  refinements  of  scholastic  jurisprudence,  and  the 
various  uses  that  have  been  made,  either  by  judges  or  juridical 
writers,  or  the  terms  "injuria"  and  "damnum,"  it  is  sufficient 
to  say  that  the  gist  of  an  action  for  negligence  seems  to  me  to 
be  the  harm  to  persons  or  property  negligently  perpetrated.    In 
a  certalnT  class  of  eases  tne  mere  violation  o±  a  legal  right  imports 
a  damage.     "Actual  perceptible  damage,"  says  Parke,  B.,  in 
Emery  v.  Owen  (6  Ex.,  353,  at  368),  "is  not  indispensable,  as 
the  foundation  of  an  action ;  it  is  sufficient  to  show  the  violation 
of  a  right,  in  which  case  the  law  will  presume  damage."    But 
this  principle  is  not  as  a  rule  applicable  to  actions  for  negligence, 
which  are  not  brought  to  establish  a  bare  right,  but  to  recover 
^mpensation Jor" substantial  injury.     "Generally  speaking," 
says  Littledale,  J.,  in  Williams  v.  Morland   (2  B.  &  C,  916), 
"there  must  be  temporal  loss  or  damage  accruing  from  the  wrong- 
ful act  of  another  in  order  to  entitle  a  party  to  maintain  an  action 
on  the  case;"  see  Fay  v.  Prentice  (1  C.  B.,  835),  per  Maule,  J. 
This  leads  me  to  consider,  whether  in  the  case  of  an  accident 

<^iA  ^  ^^-^^    -**--.  -=^--  ,e— 5:— ^-^^  -fr^ 


j:3^  c_o  'xX-s.Jk, 


^EC.    3.]  BKUNSDEN    V.    HUMPHREY.  509 

caused  by  negligent  driving,  in  which  both  the  goods  and  the 
person  of  the  plaintiff  are  injured,  there  is  one  cavLse  of  action 
only  or  two  causes  of  action  which  are  severable  and  distinct. 
This  is  a  very  difficult  question  to  answer,  and  I  feel  great 
doubt  and  hesitation  in  differing  from  the  judgment  of  the  court 
below  and  from  the  great  authority  of  the  present  chief  justice 
of  England.     According  to  the  popular  use  of  language,  the 
defendant's  servant  has  done  one  act  and  one  only,  the  driving 
of  the  one  vehicle  negligently  against  the  other.    But  the  rule 
of  law,  which  I  am  discussing,  is  not  framed  with  reference  to 
some  popular  expressions  of  the  sort,  but  for  the  sake  of  pre- 
venting an  abuse  of  substantial  justice.     Two  separate  kinds  of 
injury  were  in  fact  inflicted,  and  two  wrongs  done.     The  mere_ 
negligent  driving  in  itself,  if  accompanied  by  no  injury  to  the^ 
"^limtigTwas  not  actionable  at  ail,  for  it  was  not  a  wrongfuLacT 
at  all  till  a  wrnnpr  arn«P  nnt.  nt  the  damage  whiCrh   it  (JUlenr 
"One  wrong  was  done  as  soon  as  the  plaintiff's  enjoyment  of  his 
property  was  substantially  interfered  with.     A  further  wrong 
arose  as  soon  as  the  driving  also  caused  injury  to  the  plaintiff's 
person.    Both  causes  of  action,  in  one  sense,  may  be  said  to  be 
founded  upon  one  act  of  the  defendant's  servant,  but  they  are 
not  on  that  account  identical  causes  of  action.     The  wrong  con- 
sists in  the  damage  done  without  lawful  excuse,  not  the  act  of 
driving,  which   (if  no  damage  had  ensued)   would  have   been" 
legallxJimmEQEtant     It  certainly  would  appear  unsatisfactory 
"to  hold  that  the  damage  done  in  a  carriage  accident  to  a  man's 
portmanteau  was  the  same  injury  as  the  damage  done  to  his 
spine,  or  that  an  action  under  Lord  Campbell's  act  by  the  widow 
and  children  of  a  person  who  has  been  killed  in  a  railway  col- 
lision, is  barred  by  proof  that  the  deceased  recovered  in  his  life- 
time for  the  damage  done  to  his  luggage.     It  may  be  said  that 
it  would  be  convenient  to   force  persons  to  sue   for  all  their 
grievances  at  once  and  not  to  split  their  demands;  but  there  is 
no  positive  law   (except  so  far  as  the  county  court  acts  have 
from  a  very  early  date  dealt  with  the  matter),  against  splitting 
demands  which  are  essentially  separable  (see  Seddon  v.  Tutop  [6 
T.  R.,  607] ),  although  the  high  court  has  inherent  power  to  pre- 
vent vaxation  or  oppression,  and  by  staying  the  proceedings  or 
apportioning  the  costs,  would  have  always  ample  means  of  pre- 
venting any  injustice  arising  out  of  the  reckless  use  of  legal 
procedure.    In  the  present  case  the  plaintiff's  particulars  in  the 


510  THE    COMPLAINT.  [ClIAP.  III. 

county  court  were  confined  to  the  damage  done  to  his  cab;  the 
injury  to  his  person,  therefore,  was  neither  litigated  nor  con- 
sidered in  the  county  court.  The  real  test  is  not,  I  think, 
whether  the  plaintiff  had  the  opportunity  of  recovering  in  the 
first  action  what  he  claims  to  recover  in  the  second  (see  Seddon  v. 
Tutop,  [6  T.  R.,  607]).  With  all  respect,  I  do  not  see  how  it 
can  be  said  that  Nelson  v.  Couch  [15  C.  B.,  (n.  s.)  99]  so  decides. 
That  case  establishes  only  the  converse  rule,  viz.,  that  the  maxim 
"Nemo  debet  bis  vexari"  cannot  apply  where  in  the  first  action 
the  plaintiff  had  no  such  opportunity  of  satisfying  his  claim. 
The  language  of  Coleridge,  J.,  and  the  other  members  of  the 
court  in  Ilodsoll  v.  Stallbrass  (11  A.  &  E.,  305),  must,  I  think, 
be  read  by  the  light  of  the  special  circumstances  of  that  case; 
and  so  read  is  not  inconsistent  with  the  view  at  which  I  have 
here  arrived.  I  am  in  no  way  departing  from  the  language  of 
this  authority  in  holding,  as  I  do  in  the  present  instance,  that 
the  damage,  for  Avhich  the  plaintiff  is  now  suin^^  accrues  from 
a  different  injury,  and  therefore  a  different  wrongs  from  that 
for  which  he  recovered  damages  in  the  county  court.  The  view 
at  which  I  have  arrived,  is  in  conformity  with  the  reasoning  of 
the  judgment  recently  pronounced  by  this  court  in  the  case  of 
Mitchell  V.  Darley  Main  Collierly  Co.  (14  Q.  B.  D.,  125),  where 
it  was  held,  reversing  Lamb  v.  Walker  (3  Q.  B.  D.,  389),  that 
each  fresh  subsidence  of  soil  in  the  case  of  withdrawal  of  sup- 
port gave  rise  to  a  fresh  cause  of  action.  Nor  do  I  feel  called 
upon  to  extend  the  application  of  the  sound  and  valuable  prin- 
ciple of  law,  that  none  shall  be  vexed  twice  for  the  same  cause 
of  action,  to  a  case  to  which  it  has  never  yet  been  applied,  and 
to  which  it  can  only  be  applied  by  pursuing  analogj'  to  lengths 
which  would  involve  practical  injustice.  The  present  case  is 
one  which  I  am  conscious  that  lawj^ers  of  great  authority  do 
differ  and  will  differ.  But  on  the  whole,  in  my  opinion,  the 
judgment  of  the  Queen's  Bench  Division  ought  to  be  reversed, 
and  the  judgment  entered  at  the  trial  for  the  plaintiff  be  restored 
with  costs  to  the  plaintiff",  including  the  costs  below  and  of  this 
appeal. 

0  fv       -  Judgment  reversed. 


Sec.  3.]  king  v.  c,  m.  j:  st.  p.  ry.  co.  511 

KING  V.  C,  M.  &  ST.  P.  RY.  CO. 

80  Minn.,  83.     [1900.] 

Lewis,  J.     Plaintiff,  while  riding  in  and  driving  his  wagon 
across  the  defendants'  tracks,  was  run  into  by  defendant's  train. 
As  a  result,  he  was  personally  injured,  and  the  wagon  and  har- 
ness and  horses  were  injured.    Thereafter  plaintiff  brought  an 
action  against  defendant  to  recover  for  the  injuries  suffered  in 
his  person,  and  secured  a  judgment  for  $1,000.     While  that 
action  was  still  pending  on  appeal  in  this  court  (79  N.  W.,  611), 
plaintiff  commenced  the  present  proceeding  to  recover  the  dam- 
age sustained  by  the  injury  to  the  harness,  wagon  and  horses 
alleged   to  be  $225.     As   a  defense  to  this   action,   defendant 
pleaded  the  former  judgment  as  a  bar,  and,  by  an  amendment 
later,  pleaded  its  full  payment  and  satisfaction.    Upon  the  trial 
below,  judgment  was  rendered  for  the  full  amount,  and  defend- 
ant appeals. 

This  brings  before  us  a  question  new  to  this  court,  viz :    Where 
the  person  himself  and  his  personal  property  are  injured  by  the 
same  tortious  act,  does  there  arise  only  one  cause  of  action  for 
damages,  or  is  there  one  separate  and  independent   cause  of 
action  for  injuries  to  the  person,  and  another  for  dama-es  to  the 
property?    It  has  long  since  become  settled  in  this  state  that  a 
gi°gJg^,^£il^e„g^Hg^_of  action  cannot  be  spiir^I7"i^^  severnl 
^suits,  and  tha^one  recovery,  although  it  be  in  part  recovery  for  "" 
the  entire  injury Js, effectual^  an  estoppel;    Pierro^vT  Rai W 
Company,  39  Minn.  451,  40  N.  W.  520;  Thompson  v.  Myrick, 
24  Minn.  4;  Ziebarth  v.  Nye,  42  Minn.  541,  44  N    W    10'^7- 
O'Brien  v.  Manwaring,  (Minn.)  81  N.  W.  746.    Mr.  Dunnelfin 
his  new  work,  Minnesota  Pleading,  (sections  285,  286),  defines  a 
cause  of  action  and  quotes  from  Pomeroy  on  Remedies :    -  Every 
remedial  right  arises  out  of  an  antecedent  primary  right  and  a 
corresponding  duty,   and  a   delict  or  breach  of  such  primarv 
right  and  duty  by  the  person  on  whom  the  duty  rests.     Every 
judicial  action  must,  therefore,  invnl...  .;.^_Hlnrin     elen^;^ 
A^2^Bg.£ighLpossessed  by  the  plai£iff,.and.a.egi^^ 
fl^^W  upon  the  dejjd^a  delict  or  wron'" 

done^lby^th^def^ndant,  which  consisT^  i^a  brP..l.   .f  .,,J^ 


512  THE   COMPLAINT.  [ChAI*.  III. 

tiff,  and  a  remedial  duty  resting  on  the  defendant,  springing 
from  this  delict;  and  fiSaTTTthe  remedy  itself.     Every  action, 
however  complicated  or  however  simple,  must  contain  these  es- 
sential elements.    Of  these  elements,  the  primary-  right  and  duty 
and  the  delict  or  wrong,  combined,  constitute  the  cause  of  ac- 
tion."   The  learned  trial  judge,  in  a  carefully  written  memoran- 
dum, based  his  decision  upon  the  proposition  that  at  the  common 
law  every  person  was  possessed  of  two  distinct  primary  rights,— 
the  right  of  personal  security  and  the  right  of  private  property, 
—and  that  a  distinct  cause  of  action  arose  from  an  infringement 
of  either.    And,  it  is  argued,  these  rights  have  been  carried  into 
our  system  of  jurisprudence,  and  remedies  provided  for  their 
preservation ;  that  the  constitution  guarantees  a  certain  remedy 
by  the  law  for  injuries  thereto;  that  statutes  have  been  enacted 
with  the  special  purpose  of  keeping  these  rights  separate  and 
distinct,  in  order  that  the  remedy  for  an  infringement  of  each 
may  be  enforced  without  reference  to  the  other,  as  the  statute 
of  limitations   (Gen.  Sts.  189i,  §§5136-5138;)   also,  the  statute 
providing  what  causes  of  action  survive.  Counsel  for  respondent, 
taking  this  distinction  of  primary  right  as  a  basis,  has  argued 
ably  that  it  necessarily  follows  that  the  cause  of  action  in  this 
case  did  not  consist  of  the  act  of  negligence  on  the  part  of  the 
defendant  in  injuring  the  plaintiff  and  his  property,  but  the 
cause  of  action  arose  from  the  results  of  the  act ;  that  instantly 
upon  the  strildng  and  throwing  of  plaintiff  by  the  engine  the 
cause  of  action  arose  for  injury  to  his  person,  and  another  cause 
arose  as  soon  as  plaintiff's  enjoyment  of  his  property  was  inter- 
fered with.     The  leading  case  in  favor  of  respondent's  position 
arose  in  the  English  Courts.    Brunsden  v.  Humphrey,  14  Q.  B. 
Div.  141.    In  that  case  a  cabman  had  been  run  into  by  another 
vehicle,  causing  injury  to  the  cabman  and  his  cab.     The  court 
held  that  he  might  maintain  two  separate  actions:     "Two  sep- 
arate kinds  of  injury  were  in  fact  inflicted,  and  two  wrongs 
done.     The  mere  negligent  driving  in  itself,  if  accompanied  by 
no  injury  to  the  plaintiff,  was  not  actionable  at  all;  for  it  was 
not  a  wrongful  act  at  all  till  a  wrong  rose  out  of  the  damage 
which  it  caused.    One  wrong  was  done  as  soon  as  the  plaintiff's 
enjoyment  of  his  property  was  substantially  interfered  with.    A 
further  wrong  arose  as  soon  as  the  driving  also  caused  injury 
to  the  plaintiff's  person.     Both  causes,  of  action,  in  one  sense, 
may  be  said  to  be  founded  upon  one  act  of  defendant 's  servant. 


^  ^  ^.         ^  _  t-.  ^-r- kxs. 


«zJo--j».:s^txJi. 


Sec.  3.]  king  v.  c,  m.  &  st.  p.  ry.  co.  513 

but  they  are  not  on  that  account  identical  causes  of  action. ' '  But 
the  refined  reasoning  of  this  part  of  the  opinion  is  destroyed  by 
the  common  sense,  practical  argument  of  Chief  Justice  Coleridge 
in  a  dissenting  opinion:  ''It  appears  to  me  that  whether  the 
negligence  of  the  servant,  or  the  impact  of  the  vehicle  which  the 
servant  drove,  be  the  technical  cause  of  action,  equally  the  cause 
is  one  and  the  same.  That  the  injury  done  to  the  plaintiff  is 
injury  done  to  him  at  one  and  the  same  moment  by  one  and  the 
same  act,  in  respect  of  different  rights  (i.  e.,  his  person  and  his 
goods),  I  do  not  in  the  least  deny;  but  it  seems  to  me  a  subtlety 
not  warranted  by  law  that  a  man  cannot  bring  two  actions  if  he 
is  injured  in  his  arm  and  in  his  leg,  but  can  bring  two  if,  be- 
sides his  arm  and  leg  being  injured,  his  trousers  which  contain 
his  leg,  and  his  coat  sleeve  which  contains  his  arm,  have  been 
torn."  In  Watson  v.  Railway  Co.,  (Tex.  Civ.  App.)  27  S.  W. 
924,  the  court  held  that  two  causes  of  action  arose  where  the 
same  act  caused  the  injury  to  the  person  and  the  property; 
placing  the  decision  on  the  exception  noted  in  2  Black.  Judgm. 
§  740,  viz.,  that,  where  there  is  an  infringement  of  different 
rights,  separate  causes  of  action  follow.  But  the  only  case  cited 
in  the  text  is  the  English  ease  above  noted.  On  the  other  hand, 
the  principle  contended  for  by  appellant  has  been  accepted  in 
Massachusetts  (Doran  v.  Cohen,  147  i\Iass.  342,  17  N.  E.  647; 
Bliss  V.  Railroad  Co.,  160  Mass.  447,  36  N.  E.  65) ;  also,  in  New 
York,  in  the  ease  of  Reilly  v.  Paving  Co.,  (Sup.)  52  N.  Y.  Supp. 
817.  We  are  of  the  opinion  that  the  cause  of  action  consists  of  the 
negligent  act  which  prcxluced  the  effect,  rather  than  in  the  effect 
of  the  act  in  its  application  to  different  primary  rights,  and  that 
the  injury  to  the  person  and  property  as  a  result  of  the  original 
cause  gives  rise  to  dift'erent  items  of  damage.  The  natural  rights 
mentioned  in  the  constitution  and  statutes  are  of  a  personal 
character,  all  centering  in  the  person;  and  the  enactments  re- 
ferred to  are  intended  to  preserve  them  under  the  various  phases 
of  life,  in  the  most  practicable  manner,  as  viewed  by  the  legis- 
lature. But,  because  the  distinction  in  reference  to  personal 
and  property  rights  has  been  made,  as  noticed  by  respondent,  it 
does  not  follow  that  those  statutes  were  intended  to  definitely 
provide  for  separate  remedies  under  the  circumstances  presented 
in  this  case.  Our  attention  has  been  called  to  the  case  of  Skog- 
lund  V.  Railway  Co.,  45  Minn.  330,  47  N.  W.  1071,  11  L.  R.  A. 
:?3 


514  THE    COMPLAINT.  [ChAP.  III. 

222.*  We  cannot  accept  the  reasoning  of  the  court  in  that  case 
as  applicable  to  the  one  before  us.  The  facts  were  different, 
and  it  is  not  necessary  at  this  time  to  review  it.  The  rule 
there  applied  should  certainly  not  be  extended.  The  views 
we  have  adopted  seem  to  us  more  in  harmony  with  the  tendency 
toward  simplicity  and  directness  in  the  determination  of  con- 
troversial rights.  That  rule  of  construction  should  be  adopted 
which  will  most  speedily  and  economically  bring  litigation  to  an 
end,  if  at  the  same  time  it  conserves  the  ends  of  justice.  There 
is  nothing  to  be  gained  in  splitting  up  the  rights  of  an  injured 
party  as  in  this  case,  and  much  may  be  saved  if  one  action  is 
made  to  cover  the  subject.    Judgment  reversed. 


tK»NJ^ 


i 


REILLY  v.  SICILIAN  ASPHALT  PAVING  COMPANY. 

170  N.  Y.  40.     [1902.] 

CuLLEN,   J.     The    appellant   claimed    that    while    driving   in 
er•^>^./— A-  Central  Park,  in  the  city  of  New  York,  both  his  person  and  his 

vehicle  were  injured  in  consequence  of  collision  with  a  gravel 
heap  placed  on  the  road  through  the  negligence  of  the  defendant. 
Thereupon  he  brought  an  action  against  the  defendant  in  the 
court  of  common  pleas  to  recover  damages  for  the  injury  to  his 
person.  Subsequently  he  brought  another  action  in  one  of  the 
I,^Vaj~*>>  •  (district  courts  of  the  city  of  New  York  to  recover  for  the  injury 
to  his  vehicle.  In  this  last  action  he  obtained  judgment  which 
was  paid  by  the.  defendant.  Thereafter  the  defendant  set  up 
by  supplemental  answer  the  judgment  in  the  district  court  suit 
and  its  satisfaction  as  a  bar  to  the  further  maintenance  of  the 
action  in  the  common  pleas.  On  the  trial  of  the  case  in  the 
supreme  court,  to  which,  under  the  constitution,  the  action  was 
transferred,  it  was  held  that  the  plaintiff's  right  of  action  was 
merged  in  the  judgment  recovered  in  the  district  court,  and  his 
complaint  was  dismissed.  The  judgment  entered  upon  this  di- 
rection was  affirmed  by  the  appellate  division,  and  an  appeal  has 


T 


*In  Skoglund  v.  Ry.,  45  Minn.  330,  the  plaintiff  and  his  wife  had 
been  injured  in  the  same  accident.  In  an  action  for  the  loss  of  his 
»^rife's  services  it  was  held  that  his  former  recovery  for  his  personal 
injuries  constituted  no  defense.         .      i 


Sec.  3.]  keilly  v.  Sicilian  asphalt  paving  co.  515 

been  taken  to  this  court  bj'  allowance.  The  rule  is  that  a  single 
or  entire  cause  of  action  cannot  be  subdivided  into  several 
claims,  and  separate  actions  maintained  thereon.  Secor  v.  Stur- 
gis,  16  N.  Y.  548 ;  Nathans  v.  Hope,  77  N.  Y.  420.  As  to  this 
principle  there  is  no  dispute.  Therefore  the  question  presented 
by  his  appeal  is  whether,  from  the  defendant's  negligence,  and 
the  injury  occasioned  thereby  to  the  plaintiff  in  his  person  and 
his  property,  there  arose  a  single  cause  of  action,  or  two  caiLses 
of  action,  one  for  the  injury  to  his  person,  and  the  other  for 
injury  to  his  property.  The  question  is  not  determined  by  the 
code  of  civil  procedure,  for,  though  in  section  484  it  prescribes 
Avhat  separate  causes  of  action  may  be  joined  in  the  same  com- 
plaint, it  nowhere  assumes  to  define  what  is  a  single  cause  of 
action.  Nor  is  there  any  controlling  decision  of  this  court  on  the 
point.  In  Mulligan  v.  Ice  Co.,  (afiflrmed  without  opinion)  109 
N.  Y.  657,  16  N.  E.  684,  the  question  discussed  in  the  opinion 
of  the  learned  court  below^  and  necessarily  involved  in  the  de- 
cision of  this  court,  was  the  effect  of  a  release  which  the  plaintiff 
asserted  was  intended  to  cover  only  the  injuries  to  his  property, 
but  was  fraudulently  prepared  so  as  to  embrace  his  whole  cause, 
of  action.  The  case  is  doubtless  authority  for  the  proposition 
that  the  voluntary  settlement  between  the  parties  of  a  part  of  a 
claim  does  not  satisfy  or  discharge  the  whole  claim.  But  the 
principle  that  the  parties  may,  by  a  voluntary  agreement,  sever 
or  spilt  up  a  single  cause  of  action,  though  a  plaintiff  cannot 
of  his  own  volition  do  the  same,  seems  to  be  generally  recognized 
even  in  those  jurisdictions  where  the  rule  is  held  most  firmly 
that  a  single  tort  gives  rise  to  but  a  single  caiLse  of  action. 
O'Beirne  v.  Lloyd,  43  N.  Y.  248;  Bliss  v.  Railroad  Co.,  160  Mass. 
447,  36  N.  E.  65,  39  Am.  St.  Rep.  504. 

The  question  now  before  us  has  been  the  subject  of  conflicting 
decisions  in  different  jurisdictions.  In  England  it  has  been  held 
by  the  court  of  appeal  (Lord  Coleridge,  C.  J.,  dissenting)  that 
damages  to  the  person  and  to  property,  though  occasioned  by 
the  same  wrongful  act,  give  rise  to  different  causes  of  action 
(Brunsden  v.  Humphrey,  14  Q.  B.  D.  141),  while  in  Massachu- 
setts, Minnesota  and  Missouri,  the  contrary  doctrine  has  been 
declared:  (Doran  v.  Cohen,  147  Mass.  342,  17  N.  E.  647;  King 
V.  R.  R.  Co.  [Minn.]  82  N.  W.  1113,  50  L.  R.  A.  161,  81  Am. 
St.  Rep.  238;  Von  Fragstein  v.  Windier,  2  Mo.  App.  598.)  The 
argument  of  those  courts  which  maintain  that  an  injury  to  per- 


516  TIIE    COMPLAINT.  [ClIAP.  TIF. 

son  and  prnperty  creates  but  a  single  cause  of  action  is  that,  as 
the  defendant's  wrongful  act  was  single,  the  cause  of  action 
must  be  single,  and  that  the  different  injuries  occasioned  by  it 
are  merely  items  of  damage  proceeding  from  the  same  wrong, 
while  that  of  the  English  court  is  that  the  negligent  act  of  the 
defendant  in  itself  constitutes  no  cause  of  action,  and  becomes 
an  actionable  wrong  only  out  of  the  damage  which  it  causes, 
"One  wrong  was  done  as  soon  as  the  plaintiff's  enjoyment  of 
his  property  was  substantially  interfered  with.  A  further  wrong 
arose  as  soon  as  the  driving  also  caused  injury  to  the  plaintiff's 
person."  Brunsden  v.  Humphrey,  supra.  I  doubt  whether 
either  argument  is  conclusive.  If,  where  one  person  was  driving 
the  vehicle  of  another,  both  the  driver  and  the  vehicle  were  in- 
jured, there  can  be  no  doubt  that  two  causes  of  action  would 
arise — one  in  favor  of  the  pei*son  injured,  and  the  other  in  favor 
of  the  owner  of  the  injured  property.  On  the  other  hand,  if 
both  the  horse  and  the  vehicle,  being  the  property  of  the  same 
person,  were  injured,  there  would  be  but  a  single  cause  of  actiop 
for  the  damage  to  both.  If,  while  injury  to  the  horse  and  vehicle 
of  a  person  give  rise  to  but  a  single  cause  of  action,  injurj-  to 
the  owner  and  vehicle  gives  rise  to  two  causes  of  action,  it  must 
be  because  there  is  an  essential  difference  between  an  injury  to 
the  person  and  an  injury  to  property,  that  makes  it  impracticable, 
or  at  least  very  inconvenient,  in  the  administration  of  justice,  to 
blend  the  two.  We  think  there  is  such  a  distinction.  Different 
periods  of  limitation  apply.  The  plaintiff's  action  for  personal 
injuries  is  barred  by  the  lapse  of  three  years ;  that  to  the  property 
not  till  the  lapse  of  six  years.  The  plaintiff  cannot  assign  his 
right  of  action  for  injury  to  his  person,  and  it  would  abate  and 
be  lost  by  his  death  before  the  recovery  of  a  verdict,  and,  if  the 
defendant  were  a  natural  person,  also  by  his  death  before  that 
time.  On  the  other  hand,  the  right  of  action  for  injury  to  prop- 
erty is  assignable  and  would  survive  the  death  of  either  party. 
It  may  be  seized  by  creditors  on  a  bill  in  equity  (Hudson  v. 
Plets,  11  Paige  180),  and  would  pass  to  an  assignee  in  bank- 
ruptcy. Possibly  the  difficulties  arising  from  the  difference  in 
the  periods  of  limitation  and  the  difference  in  the  rule  of  sur- 
vival between  a  personal  injury  and  a  property  injury  might 
be  obviated  in  practice  by  holding  the  statute  a  bar  to  that  por- 
tion of  the  damages,  a  claim  for  which  would  have  been  out- 
lawed had  it  been  a  separate  cau«e  of  action,  and  by  permitting, 


Sec.  3.]         reilly  v.  sicu^ian  asphalt  paving  co.  517 

in  case  of  death,  the  action  to  be  revived  so  far  as  it  relates  to 
property.  We  do  not  see,  however,  how  it  would  be  practicable 
to  deal  with  a  case  where  the  right  of  action  for  injury  to  the 
property  had  passed  to  an  assignee  in  bankruptcy,  or  to  a  re- 
ceiver on  creditor's  bill,  without  treating  it  as  an  independent 
cause  of  action.  Though,  as  we  have  already  said,  section  481 
of  the  code  does  not  expressly  determine  the  point  in  issue,  still 
it  is  not  without  much  force  in  the  argument  that  the  two  in- 
juries constitute  separate  causes  of  action.  Under  the  old  code 
of  procedure,  at  the  time  of  its  original  enactment  injuries  to 
person  and  injuries  to  property  were  separately  classified  as 
causes  of  action,  and  it  was  not  permitted  to  join  those  of  one 
class  with  those  of  another.  Code  Proc.  §  167.  By  an  amend- 
ment in  1852,  injuries  to  persons  and  property  were  put  in  the 
same  class.  But  by  section  484  of  the  Code  of  Civil  Procedure 
they  are  again  placed  in  different  classes,  and  cannot  be  united. 
If  the  plaintiff's  cause  of  action  is  single,  into  what  class  does  it 
fall?  Is  it  for  an  injurj'  to  the  person,  which  may  be  united 
with  other  causes  of  action  for  personal  injuries,  or  is  it  for 
injury  to  property,  which  may  be  joined  with  claims  of  the 
same  nature,  or  is  it  sui  gejieris,  a  nondescript  which  must  stand 
alone  ? 

While  some  of  the  difficulties  in  the  joinder  of  a  claim  for 
injury  to  the  person  and  one  for  the  injury  to  the  property  in 
one  cause  of  action  are  created  by  our  statutory  enactments,  the 
history  of  the  common  law  shows  that  the  distinction  between 
torts  to  the  person  and  torts  to  property  has  always  obtained. 
Lord  Justice  Bowen,  in  the  Brunsden  case,  has  pointed  out  that 
there  is  no  authority  in  the  books  for  the  proposition  that  a 
recovery  for  trespass  to  the  person  is  a  bar  to  an  action  for  tres- 
pass to  goods,  or  vice  versa.  It  is  true  that  at  common  law  the 
necessity  of  bringing  two  suits  could,  at  the  election  of  the 
plaintiff,  be  obviated  in  some  cases,  as,  for  instance,  by  declaring 
for  trespass  on  the  plaintiff' 's  close,  and  alleging  in  aggravation 
thereof  an  assault  upon  his  person.  See  Wat.  Tresp.  205,  206. 
Still  in  such  a  case  there  would  be  but  a  single  cause  of  action, 
to-wit,  the  trespass  upon  the  close,  and,  if  the  defendant  justified 
this  trespass,  it  would  be  a  complete  defense  to  the  action;  the 
personal  assault  being  merely  a  matter  of  aggravation.  Cfir- 
penter  v.  Barber,  44  Vt.  441.  Therefore,  for  reason  of  the  great 
difference  between  the  rules  of  law  applicable  to  injuries  of  the 


518  THE   COMPLAINT.  [ChAP.  III. 

person  and  those  relating  to  injuries  to  property,  we  conclude 

that  an  injury  to  person  and  one  to  property,  though  resulting 

from  the  same  tortious  act,  constitute  different  causes  of  action. 

The  judgment  appealed  from  should  be  reversed  and  a  new 

\    trial  granted ;  costs  to  abide  the  event. 


COIMMISSIONERS  OF  BARTON  COUNTY  v.  PLUMB. 

20  Kansas  147.     [1878.] 

Valentine,  J. :  This  was  an  action  brought  in  Lyon  County 
by  the  board  of  county  commissioners  of  Barton  county  against 
P.  B.  Plumb  and  W.  T.  Soden  on  a  certain  penal  bond  executed 
by  them.  The  petition  below  sets  forth  and  alleges  among  other 
things  the  following  facts:  Said  bond  was  executed  by  John 
McDonald  as  principal,  and  P.  B.  Plumb  and  W.  T.  Soden  as 
sureties,  and  bound  said  McDonald,  Plumb,  and  Soden  unto  said 
county  of  Barton  in  the  penal  sum  of  fifty  thousand  dollars,  to 
be  void  however  upon  the  condition  that  said  McDonald  should 
comply  with  all  the  terms  of  a  certain  written  contract  previously 
entered  into  between  him  and  said  board  of  county  commission- 
ers, whereby  he  agreed,  for  the  consideration  of  $24,200  to  fur- 
nish all  the  material  and  build  a  certain  court  house  within  a 
certain  time  in  said  county  of  Barton.  The  petition  also  alleges 
that  the  county  on  its  part  complied  with  the  terms  and  condi- 
tions of  said  bond  and  said  contract,  but  that  McDonald  did  not 
comply  on  his  part  with  all  the  terms  of  said  contract.  In  great 
detail  it  alleges  that  he  did  not  complete  said  building  within 
the  time  agreed  upon  by  the  parties,  nor  at  any  other  time ;  that 
he  did  not  furnish  sufficient  material  therefor,  and  that,  although 
he  furnished  some  of  the  material  therefor,  and  did  some  of  the 
work  thereon,  yet  that  said  material  and  said  work  were  of  an 
inferior  quality,  and  were  not  such  as  were  required  by  the 
terms  of  said  written  contract.  The  petition  also  alleges  certain 
other  facts  tending  to  show  the  amount  of  the  damages  which 
resulted  to  the  plaintiff  from  the  non-compliance  of  McDonald 
with  said  contract,  and  then  asks  for  a  judgment  for  the  plaintiff 
for  $12,000  damages,  and  costs  of  suit.  The  defendants  moved 
*'the  court  to  require  the  plaintiff  to  separately  state  and  num- 
ber the  several  causes  of  action  contained  in  plaintiff 's  petition ' ' 


Sec.  3.]  barton  county  v.  plumb.  519 

— but  they  did  not  state  or  show  how  many  or  what  causes  ot 
action  they  claimed  were  contained  in  the  plaintiff's  petition. 
The  court  sustained  this  motion ;  but  the  court  was  equally  silent 
as  to  the  number  or  kinds  of  causes  of  action  it  considered  were 
contained  in  plaintiff's  petition.  The  plaintiff'  failed  to  amend 
said  petition  in  any  manner  whatever,  and  for  that  reason  the 
court  dismissed  the  action.  The  plaintiff  assigns  said  rulings  of 
the  court  below  as  error. 

If  the  petition  did  in  fact  state  more  than  one  cause  of  action, 
as  is  claimed  by  the  defendants,  then  the  rulings  of  the  court 
below  were  correct;  but  if  it  really  stated  only  one  cause  of 
action,  as  is  claimed  by  the  plaintiff',  then  said  rulings  of  the 
court  below  w^ere  evidently  erroneous.  We  think  the  petition 
really  stated  only  one  cause  of  action.  Houston  v.  Delahay,  14 
Kan.  125,  130.  (See  also  as  throwing  some  light  upon  this  ques- 
tion, the  following  cases,  to-wit :  Hibbard  v.  McKindley,  28  111. 
240;  State  v.  Davis,  35  Mo.  406;  Fisk  v.  Tank,  12  Wis.  276,  298, 
299 ;  Roehing  v.  Huebschman,  35  Wis.  185,  187 ;  Smith  v.  B.  C. 
&  M.  Rid.,  36  N.  H.  458,  484;  K.  C.  Hotel  Co.  v.  Sigement,  53 
Mu.  176,  177.)  The  defendants  by  executing  the  penal  bond  set 
forth  in  the  petition,  agreed  and  guaranteed  in  substance,  that 
McDonald  should  build  said  court  house  as  he  agreed  to  do ;  but 
McDonald  failed.  And  this  is  what  constitutes  the  plaintiff's 
cause  of  action,  and  we  think  it  constitutes  only  one  cause  of 
action.  It  is  true,  that  McDonald  did  not  wholly  fail.  He  built 
a  court-house  or  a  part  of  a  court-house;  but  he  did  not  build 
the  kind  and  quality  of  court-house  which  the  parties  agreed 
should  be  built ;  and  evidently,  his  partial  failure  to  build  said 
court-house,  his  failure  in  some  of  the  innumerable  particulars 
in  building  the  same,  would  not  constitute  a  greater  number  of 
causes  of  action  than  a  total  failure  to  build  such  court-house. 
a  total  failure  in  evpry  narticnlar.  Even  if  this  action  should 
be  governed  by  tJie  same^  principles  which  would  govern  in  an 
action  brought  by  plaintiff  against  McDonald  on  his  original 
contract  to  build  said  court-house,  we  would  still  think  that  the 
same  result  would  follow,  and  that  the  facts  of  the  case  would 
constitute  only  one  cause  of  action.  McDonald  simply  agreed 
that  on  or  before  the  25th  of  December,  1873,  he  would  furnish 
to  the  plaintiff,  and  at  Great  Bend,  a  certain  kind  and  quality 
of  court-house,  completed  and  finished.  He  did  not  agree  that 
he  would  furnish  materials,  as  materials,  or  labor  as  lahar.    All 


520  THE    COMPL.UNT.  [ChAI'.  111. 

that  he  agreed  to  do  with  reference  to  furnishing  materials  or 
labor  was  that  he  would  furnish  them  in  a  court-liousc,  and  as  a 
part  of  the  court-house.  Under  said  contract  it  was  his  legal 
duty  to  furnish  said  materials  and  labor  in  said  court-house,  and 
not  otherwise;  and  the  plaintiff  had  a  legal  right  to  receive  them 
in  such  court-house,  and  not  in  any  other  manner.  That  is,  it 
was  the  legal  duty  of  McDonald  to  furnish  to  the  plaintiff  said 
court-house  as  he  agreed  to  do,  and  the  plaintiff  had  a  legal 
right  to  so  require  it.  McDonald  violated  this  right  by  not  so 
furnishing  said  court-house.  And  this  is  just  what  constitutes 
the  plaintiff's  cause  of  action  against  McDonald  on  said  contract. 
That  is,  the  plaintiff' 's  cause  of  action  is  founded  on  the  right 
of  the  plaintiff  to  receive  said  court-house  from  McDonald  acr 
cording  to  said  contract,  and  the  violation  of  such  right  bv  Mc- 
Donald. The  failure  on  the  part  of  McDonald  to  furnish 
materials  or  labor  wa^  no  violation  of  any  right  of  the  palintitt'. 
except  as  he  failed  to  furnish  them  in  the  building  and  as  a  part 
tIi§21iQ£.  The  materials  and  labor  when  furnished  would  not 
belong  to  the  plaintiff'  until  they  were  put  into  the  building. 
Prior  to  that  time  they  would  belong  to  McDonald.  He  could 
bring  materials  onto  the  ground,  and  then  take  them  away  if  he 
chose.  He  could  put  them  into  the  building,  or  not,  just  as  he 
chose.  And  after  completing  the  building,  (if  he  had  done  so) 
he  could  take  away  all  the  materials  not  used  in  the  construction 
of  the  building.  The  plaintiff'  never  did  own  nor  could  own 
under  said  contract  any  part  of  the  materials  furnished  by  Mc- 
Donald, except  as  it  owned  them  as  parts  and  portions  of  said 
court-house  building.  From  the  foregoing,  it  will  be  seen  that 
the  plaintiff'  possessed  one  grand  primary  right,  and  only  one 
such  right,  and  that  that  right  was  to  have  a  good  court-house 
built  according  to  said  contract.  liVithin  this  grand  primary 
right,  however,  there  existed  innumerable  subordinate  and  sec-. 
ondary  rights.  These  subordinate  and  secondary  rights  reached 
to  all  the  illimitable  details  in  the  construction  of  said  building. 
Thus,  the  plaintiff  had  a  right  to  have  every  brick  of  proper 
quality,  and  put  into  the  building  in  a  proper  manner.  So  also 
with  respect  to  every  piece  of  lumber,  pane  of  glass,  nail,  lock, 
hinge,  etc.  Now  each  of  these  innumerable  subordinate  rights 
might  be  violated,  and  the  violation  of  any  one  of  them  would 
constitute  a  cause  of  action.  Thus,  if  McDonald  had  put  a  broken 
or  crooked  pane  of  glass  into  a  window  ,instead  of  putting  in  a 


tA. 


Sec.  3.]  barton  county  v.  plumb.  521 

good  one,  or  had  not  puttied  it  in  well,  the  plaintiff  would  have 
had  a  cause  of  action  against  him  for  the  resulting  damages. 
The  same  thing  may  be  said  with  respect  to  putting  a  brick  in 
the  wall,  or  a  piece  of  tin  on  the  roof,  or  a  board  in  the  floor. 
And  so  on  through  all  the  limitless  details  in  constructing  the 
building.  But  the  violation  of  each  of  these  special  and  subor- 
dinate rights  is  also  a  violation  of  the  more  general  and  primary 
right,  and  altogether  they  constitute  only  one  violation  of  this 
grand  primary  right.  Now  as  the  violation  of  any  one  of  these 
subordinate  rights  would  constitute  a  cause  of  action,  it  might 
seem  that  the  violation  of  a  hundred  or  a  thousand  of  such  sub- 
ordinate rights  would  constitute  a  hundred  or  a  thousand  sep- 
arate and  distinct  causes  of  action.  But  such  is  not  the  case, 
or  at  most  it  is  rarely  the  case.  Possibly  the  plaintiff  might  in 
some  cases  be  allowed  to  elect  whether  he  would  treat  the  several 
violations  of  his  several  subordinate  rights  as  separate  and  dis- 
tinct causes  of  action,  or  as  only  one  cause  of  action,  but  gen- 
erally he  would  not  be  allowed  to  do  so.  Generally  he  would 
not  be  allowed  to  split  up  into  several  causes  of  action  what  he 
might  prosecute  as  only  one  cause  of  action.  In  the  present  case 
we  think  that  all  the  violations  of  the  plaintiff's  subordinate 
rights  under  said  contract  really  constitute  only  one  general  vio- 
lation of  its  general  and  primary  right  under  said  contract,  and 
therefore  that  all  of  such  violations  really  constitute  only  one 
cause  of  action.  All  of  said  violations  taken  together  were  merely' 
a  violation  of  the  plaintiff's  general  right  to  have  said  court- 
house built  according  to  contract.  McDonald  was  to  be  paid 
$24,200  in  installments,  upon  estimates  made  as  work  progressed ; 
but  it  was  expressly  stipulated  that  ''no  pajTnent  or  estimate 
shall  be  considered  as  acceptance  of  all  or  any  part  of  the  work ; 
atid  no  acceptance  shall  be  canclusive  and  final  until  the  entire 
completion  and  acceptance  of  tUe  work."  When  l\IcDonald 
abandoned  the  work,  on  20th  January,  1874,  the  plaintiff's  causo 
of  action  was  complete.  The  fact  that  the  plaintiff  afterward 
proceeded  with  the  work,  and  completed  the  building,  did  not 
give  to  the  plaintiff  another  or  an  additional  cause  of  action. 
The  necessary  cost  of  completing  the  building  may  however  be 
shown  in  the  case  for  the  purpose  of  measuring  the  plaintiff's 
damages. 

There  are  several  other  facts  alleged  in  the  plantiff's  petition, 
which  do  not  go  to  make  up  or  constitute  the  plaintiff's  cause 


522  THE   COMPLAINT.  [ChAP.  III. 

of  action,  but  are  alleged  merely  for  the  purpose  of  giving  a 
measure  for  the  plaintiff's  damages,  or  special  damages  which 
have  resulted  from  wrongs  constituting  the  plaintiff's  cause  of 
action. 

The  judgment  of  the  court  below  will  be  reversed,  and  the 
cause  remanded  with  the  order  that  said  order  of  dismissal,  and 
said  order  requiring  the  plaintiff  to  separately  state  and  number 
the  several  causes  of  action  contained  in  the  plaintiff's  petition, 
be  set  aside,  and  that  further  proceedings  be  had  in  the  case  in 
accordance  with  this  opinion. 


All  the  Justices  concurring 


* 


'd^^^K. 


BOYCE  v.  CHRISTY. 

47  Mo.  70.     {187 O.'] 

Bliss,  Judge,  delivered  the  opinion  of  the  court. 
The  plaintiff,  formerly  an  apprentice  of  defendant,  some  six 
years  after  he  had  arrived  at  majority,  brought  suit  upon  the 
^j^^w«-o  indenture.  The  statute  only  allows  such  suits  to  be  brought 
(CivArsjA-J^  within  two  years  after  the  apprentice  comes  of  age,  and  for  that 
,  cKr^r^  reason  the  petition  was  demurrable;  for  it  is  well  settled  that 
^  p_i.>^<»j->jbJtB  when  the  statute  creates  a  bar  by  lapse  of  time,  and  the  petition 
_^,^_j^  ^y,^  -  shows  that  the  time  has  elapsed,  the  defense  may  be  made  by 
;iiiS5_^  ^  demurrer.  (State  v.  Bird,  22  Mo.  470;  McNair  v.  Lott,  25  Mo. 
^ja^^j,,^^^^  182;  Van  Hook  v.  Whitloek,  7  Paige,  373.)  But  the  defendant 
oi^ju  «\  t*-^-  failed  to  avail  himself  of  the  statute,  either  by  demurrer  or 
v^  answer,  and  this  being  an  action  upon  contract,  its  benefit  was 

waived.     (Benoist  v.  Darby,  12  Mo.  196;  Sturgis  v.  Benton,  80 
O.  St.  215;  Ang.  Lira.  §285.) 

The  petition  counts  upon  the  indenture  and  charges  various 
breaches  in  the  form  of  independent  counts,  and  the  plaintiff  ob- 
tained a  general  verdict  of  $400,  upon  which  judgment  was 
rendered.  Under  our  system  such  general  verdict  is  erroneous, 
and  judgment  should  have  been  arrested.    Each  count  calls  for 


♦Accord:  Fisk  v.  Tank,  12  Wis.  307;  Nichols  v.  Alexander,  28  Wis. 
118  (several  breaches  of  covenant);  State  v.  Davis,  35  Mo.  406.  (Sev- 
eral breaches  of  a  penal  bond);  Rissler  v.  Ins.  Co.,  150  Mo.  366  (in- 
surance policy  where  the  total  was  apportioned  to  different  articles). 


t»-       c=-^^>./<^.V^    -tXAa^'^-^-'-^iA.'vJ^'^iJM^'Vj^ 


■^yv^ 


Sec.  3.j  BOYCE  V.  christt.  523 

a  separate  .judgment,  and  the  rule  under  conunon  law  plparlino-g 
cannot  apply  to  petitions  under  our  statute.  (Mooney  v.  Ken- 
nett,  19  Mo.  551;  Clark's  Admx.  v.  Hann.  &  St.  J.  K.  R.,  36  Mo. 
202;  Pitts  V.  Fugates,  Adm'x,  41  Mo.  405;  State  v.  DuUe,  45 
Mo.  269.) 

The  plaintiff  asks  that  the  petition  be  treated  as  containing 
but  one  count,  notwithstanding  its  form,  inasmuch  as  the  in- 
denture was  but  a  single  contract.  We  might,  perhaps,  get  over 
the  form  if  there  were  really  but  one  cause  of  action  in  the  peti- 
tion. But  the  breaches  were  separate  and  distinct ;  one  charging 
a  neglect  in  sending  the  apprentice  to  school :  another  in  paying 
him  money ;  others  in  other  things.  Their  investigations  involyed 
separate  and  independent  inquiries  and  findings  on  the  part  of 
the  jury,  and  they  should  be  held  to  be  independpnt  causes  of 
action,  although  arising  out  of  the  same  contract.  The  authori- 
ties upon  this  point  are  not  altogether  uniform,  although  there 
is  a  preponderance  in  favor  of  our  view.  The  State  v.  Davis,  35 
Mo.  406,  was  an  action  upon  a  sheriff's  bonds,  and  the  court 
held  that  the  various  breaches  constituted  but  one  cause  of  action. 
This  point  in  the  case  was  not  noted  in  our  only  digest,  and  its 
decision  failed  to  be  considered  by  us  when  the  question  was 
subsequently  raised.  In  Howard  v.  Clark,  43  Mo.  347,  and  in 
the  State  v.  Dulle,  45  Mo.  271,  the  opposite  view  is  held,  and 
seems  to  us  to  be  well  founded. 

The  other  judges  concurring,  the  judgment  is  reversed  and  the 
cause  is  remanded.  ^  ^     . 


HUESTON  V.  MISSISSIPPI  &  R.  R.  BOOM  CO. 
76  Minn.  251.     [1899.] 

Mitchell,  'J. :  In  1897  the  plaintiff,  as  vendee  under  an  execu- 
tory contract  of  sale,  was  in  the  possession  of  a  tract  of  land  in 
Anoka  county  bordering  on  the  Mississippi  river,  a  tributary  of 
which,  called  "Rice  Creek,"  ran  through  the  land.  On  this  creek 
there  was  a  mill  for  grinding  flour  and  feed,  operated  by  water 
power  furnished  by  the  creek.  The  mill  had  been  operated  by 
the  plaintiff  for  some  years,  and  had  an  established  line  of  cus- 
tom. About  six  acres  of  plaintiff's  land  near  the  river  were 
used  and  were  especially  adapted  for  pasturage.     The  balance 


524  THE   COMPLAINT.  [ClIAI'.  Hi. 

of  the  land  was  used  in  connection  with  the  mill  and  the  dam. 
About  five-eighths  of  a  mile  below  plaintiff's  land  there  was  an 
island  in  the  Mississippi  river,  about  half  a  mile  long.  Prior  to 
1897  the  defendant  built  a  boom  from  this  island  to  the  ea.st 
bank  of  the  river,  and  had  established  there  its  a.ssorting  gap  for 
the  purpose  of  distributing  logs  to  the  mills  of  Minneapolis.  The 
defendant  had  also  put  in  a  line  of  piling  from  the  upper  end 
of  the  island  to  the  west  bank  of  the  river,  for  the  purpase  of 
running  logs  into  the  boom.  As  a  result  of  the  erection  and  main- 
tenance of  these  works,  about  the  1st  of  April,  1897,  a  large  log 
jam  was  formed,  which  caused  the  water  to  overflow  plaintiff's 
land,  and  come  up  into  his  mill,  so  as  to  injure  it,  and  prevent  him 
from  operating  it  for  some  nine  days.  About  the  first  of  July, 
another  jam  occurred  from  the  same  cause,  which  again  flooded 
plantift"s  land  and  mill,  resulting  in  further  damage  to,  and  loss 
of  the  use  of,  the  mill,  and  destroying  and  killing  the  grass  on 
the  pasture  land  to  such  an  extent  that  it  would  require  one  or 
two  years  to  restore  it.  Another  consequence  of  this  overflow 
was  that  when  it  receded  it  left  sand  and  other  debris  on  the 
pasture  land.  There  is  really  no  controversy  but  that  the  con- 
struction and  jmaintenance  of  defendant's  works  caused  these 
overflows,  and  consequent  damage  to  plaintiff's  premises.  .  .  . 
The  complaint  alleged  generally  the  unlawful  construction 
amjjriajntenance  of  defendant's  works,  and  the  consequent  injury 
to  plaintiff's  premises  in  1897 ;  and  upon  the  trial  he  was  per- 
mitted, against  the  ob-jection  of  the  defendant,  to  introduce  evi- 
Hptt£p  n^fhe  overflow  and  consequent  damage,  both  in  April  and 
in  July.  There  is  nothing  in  the  point  that  there  were  two  sep- 
arate and  distinct  causes  of  action,  which  ought  to  have  been 
pleaded  as  such.  It  was  in  the  nature  of  a  continuing  trespass 
by  the  same  act,  althouah  resuitmg  m  actual  damage  OQ  J]^ 

"giffei'en|]o^^a  si  on  ^     '.     .     . 

^  "^  Judgment  affirmed. 

♦Accord:    Darby  v.  M.,  K.  &  T.  Ry.,  156  Mo.  391.     K^n^  ^:^-tkXf^' 


Sec.  3.]  millaed  v.  m.  k.  &  t,  r.  e.  co.  525 

MILLARD  V.  M.  K.  &  T.  R.  R.  CO. 
86  N.  Y.  441.     [1881.] 

Appeal  from  judgment  of  the  general  term  of  the  supreme 
court,  in  the  second  judicial  department,  entered  upon  an  order 
made  Feb.  10,  1880,  which  affirmed  a  judgment  in  favor  of  the 
plaintiff,  entered  upon  a  verdict.  (Reported  Below,  20  Hun.  191.) 

This  action  was  brought  to  recover  for  the  loss  of  certain  mer- 
chandise, while  being' transported  on  defendant's  road. 

The  facts  proved  Avere  substantially  these : 

On  the  30th  of  April,  1873,  the  plaintiff  and  one  William 
Brady  purchased  tickets  and  took  passage  on  the  defendant's 
road  at  St.  Louis,  Mo.,  for  Dennison,  Tex.  Plaintiff  had  with 
him  a  valise,  containing  his  wearing  apparel  and  articles  known 
as  baggage,  and  a  packing  box  or  trunk,  containing  merchandise. 
Brady  had  with  him  one  trunk,  containing  his  personal  baggage, 
and  two  packing  boxes^  or  trunks,  containing  merchandise.  The 
tickets  entitled  the  plaintiff  and  Mr.  Brady  to  carry  a  certain 
amount  of  baggage  without  extra  compensation.  The  defendant's 
agent  at  St.  Louis,  on  being  advised  of  their  contents,  refused  to 
put  the  packing  boxes  aboard  the  train,  and  insisted  that  they 
should  be  sent  as  freight.  The  plaintiff  explained  to  him  the 
nature  of  their  contents,  and  that  it  was  important  that  they 
should  go  on  the  train  with  them;  and  thereupon  the  agent 
weighed  them  together  with  the  baggage,  and  charged  $8  or  $10 
for  carrying  the  packing  boxes,  which  plaintiff  and  Mr.  Brady 
paid,  and  they  were  then  put  aboard  the  train  with  the  baggage ; 
all  were  destroyed  by  fire  on  the  following  day,  while  in  de- 
fendant's possession,  and  during  the  journey.  Mr.  Brady  assigned 
his  claims  against  the  defendant  to  the  plaintiff,  and  in  1873 
the  latter  brought  an  action  to  recover  the  value  of  the  baggage 
so  lost;  he  recovered  judgment  in  said  action,  which  was  paid. 
A  bill  of  particulars  was  served  in  that  action  which  contained 
the  items  of  merchandise  contained  in  the  packing  boxes  as  well 
as  the  baggage;  the  court,  however,  ruled  upon  the  trial  that 
nothing  but  the  personal  baggage  could  be  recovered  for  in  that 
action,  as  the  complaint  did  not  allege  the  contract  to  convey 
the  merchandise,  and  that  the  goods  now  in  suit  did  not  come 
within  the  term  "baggage,"  and  accordingly  excluded  proof  in 


526  THE    COMPL.VLNT.  [ClIAP.  III. 

regard  to  the  same;  and  plaintiff  withdrew  all  claims  for  such 
merchandise. 

Earl,  J. :  The  claim  is  made  on  the  part  of  the  appellant,  that 
the  rule,  that  where  a  party  brings  an  action  for  a  part  only  of 
an  entire,  indivisible  demand,  and  recovers  judgment,  he  cannot 
subsequently  maintain  an  action  for  another  part  of  the  same 
demand,  was  violated  in  the  judgment  rendered  in  this  action. 

The  facts,  as  the  trial  judge  found  them,  or  may  be  presumed 
in  support  of  the  judgment  to  have  found  them,  are  as  follows : 
There  were  two  contracts  made  with  each,  the  plaintiff  and  his 
assignor,  one  with  each  to  carry  him  and  his  baggage,  and  the 
other  subsequently  made  to  carry  the  chattels  contained  in  his 
trunk. 

It  was  decided  in  the  i)rior  action,  that  that  was  based  solely, 
upon  the  contract  to  carry  the  passen^rers  and  their  baggage.    The 
recovery  was  there  limited  to  such  baggage,  and  it  '/f,  was  held 
that  the  contracts  alleged  did  not  cover  the  chattels  involved  in 
this  action. 

This  action  is  based  upon  separate  contracts  to  carry  the  chat- 
tels which  were  not  properly  baggage,  and  w^hich  were  containecl_ 
in  the  trunks.  It  was  manifestly  in  reference  to  such  chattels 
that  the  extra  compensation  was  demanded  by  the  defendant  and 
separate  contracts  thus  made. 

The  former  recovery  does  not,  therefore,  bar  this  action.  A 
single  demand  was  not  divided  in  violation  of  the  rule  above  re- 
ferred to.  (Stoneman  v.  Erie  R.  R.  Co.,  52  N.  Y.  429;  Sloman 
V.  Great  Western  R.  R.  Co.,  67  id.  208.)  And  this  result  follows 
although  the  plaintiff*  in  the  former  action  recovered  for  the 
trunks  in  which  the  chattels  here  in  question  were  packed,  because 
such  recovery  was  had,  perhaps  erroneously,  under  the  contracts 
there  alleged,  and  not  under  the  contracts  alleged  in  this  action. 

The  judgment  should  be  affirmed,  with  costs. 

%^     ^UOv^. 

VAN  HOOZIER  v.  HANNIBAL  &  ST.  JOSEPH  R.  R.  CO. 

70  Mo.,  145.     [1879.] 

Hough,  'J.:  This  is  an  action  for  damages  arising  from  the 
diversion,  by  the  defendant,  in  1873,  of  a  stream  of  running 
water,  whereby  portions  of  the  plaintiff's  land  were,  in  the  year 
1875,  overflowed  and  rendered  unfit  for  cultivation,  his  crops 


Sec.  3.]  van  hoozier  v.  h.  &  st.  j.  r.  r.  co.  527 

destroyed  and  his  timber  injured.    The  defendant  pleaded  not 
guilty  and  a  former  recovery.    There  was  a  verdict  and  judgment 
for  the  plaintiff  under  the  plea  of  former  recovery.     The  de- 
fendant introduced  in  evidence  the  pleadings  in  a  suit  for  dam- 
ages, instituted  by  the  plaintiff  against  it  in  1875,  together  with 
the  instructions  of  the  court,  the  verdict  of  the  jury  and  the 
judgment  of  the  court  thereon  in  favor  of  the  plaintiff.    It  was 
then  admitted  by  the  parties  "that  the  land  injured  is  the  same 
in  both  suits,  that  the  parties  plaintiff  and  defendant  are  the 
same,  that  the  cause  of  the  injury  is  the  same,  and  the  cause  of 
the  injury,  defendant's  railroad  and  plaintiff's  land  are  all  in 
the  same  condition  as  at  the  commencement  of  this  suit,  the  judg- 
ment in  which  is  pleaded  in  bar  of  this  action,  the  only  difference 
being  that  said  former  suit  was  prosecuted  for  damages  during 
the  years  1873  and  1874,  while  the  present  suit  is  for  damages 
during  the  year  1875,  and  since  the  institution  of  the  prior  suit 
and  to  the  institution  of  the  present  suit."    By  agreement  of  the 
parties,  the  plea  of  former  recovery  was  first  tried  before  the 
court,  the  defendant  claiming  that  the  cause  of  the  injury,  for 
which  the  former  judgment  was  recovered  was  of  a  permanent 
character,  and  that  the  entire  damages,  both  for  past  and  future 
injuries,  resulting  therefrom,  could  and  should  have  been  recov- 
ered in  that  suit,  and  that  the  judgment  therein  was,  therefore, 
a  bar  to  the  present  action. 

In  cases  of  nuisance  the  rule  is  well  settled  that  the  plaintiff^ 
cannot  recover  for  iniuries  not  sustained  when  his  action  is  com- 
menced.  It  is  equally  well  settled  that  when  the  injury  inflicted 
js  of  a  permanent  character  and  goes  to  the  entire  value  of  the^ 
estafe,  tliewhole  injurv  is  suffered  at  once,  and  a  recovery  should 
be  had,  therefore,  in  i\  "^^g^^*^  «"^^  «"^^  ""  subsequent  action  can 
Wmaintflinprl  for  the  continuance  of  such  injury.  But  when 
the  wrong  done  does  not  involve  the  entire  destruction  of  the 
estate,  or  iti^  beneficial  use,  but  may  be  apportioned  from  time  to 
time,  separate  actions  must  be  brought  to  recover  the  damages^ 
so  sustained,  and  former  suit  will  be  no  bar  to  a  recovery  in 
another  action  for  damages  suffered  subsequent  to  the  institution 
of  the  first  suit.  The  town  of  Troy  v.  Chesire  R.  R.  Co.,  3  Foster 
83 ;  Cheshire  Turnpike  Co.  v.  Stevens,  13  N.  H.  8 ;  Wood  on  Nuis., 
§  856 ;  Pnney  v.  Berry,  61  Mo.,  367.  The  lands  in  question  lie 
north  of  the  defendant's  railroad,  and  the  stream  diverted  origi- 
nally flowed  along  and  a  few  rods  south  of  said  road.    The  de- 


528  THE    COMPLAINT.  [ClIAl'.  IH. 

fondant  erected  a  dam  or  enibanknient  aci-oss  the  channel  of  the 
stream  and  made  a  ditch  or  culvert  in  the  road  bed  through  which 
the  water  of  the  stream  was  conducted  upon  the  plaintiff's  land. 
Portions  of  these  lands  Avere  annually  cultivated  after  the  nui- 
sance was  levied,  and  the  crops  thereon  annually  injured,  so  that 
it  is  patent  that  the  injury  thereby  inflicted  did  not  tro  to  the 
entire  value  of  the  estate,  but  was  of  yearly  recurrence  and 
varied  in  extent  with  the  volume  of  water  discharged  upon  the 
land.  Such  being  the  facts,  it  is  plain  that  the  injury  is  a  contin- 
uous one,  susceptible  of  periodical  apportionment,  and,  therefore, 
capable  of  being  rfdrp««f^  by  ,^iipopg^sive  actions.  It  follows  from 
these  views  that  the  court  committed  no  error  in  overruling  the 
plea  of  former  recovery.     *     *     * 

*     *     *     The  other  judges  concurring  the  judgment  of  the 
circuit  court  will  be  affirmed.  r\  j,  ^\ 


TAYLOE  V.  MERCHANTS'  FIRE  INSURANCE  CO. 

9  Howard,  390.      [1850.] 

Nelson,  J.,  delivered  thp  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  circuit  court  for  the 
district  of  Maryland,  which  was  rendered  for  the  defendants. 

The  case  in  the  court  below  was  this:  William  II.  Tayloe,  of 
Richmond  county,  Virginia,  applied  to  John  Minor,  the  agent  of 
defendants,  residing  at  Fredericksburg  in  that  state,  for  an  insur- 
ance upon  his  dwelling  house  to  the  amount  of  $8,000.00  for  one 
year,  and,  as  he  was  about  leaving  home  for  the  state  of  Alabama, 
desired  the  agent  to  make  the  application  in  his  behalf. 

The  application  was  made  accordingly,  under  the  date  of  the 
25th  of  November,  1844,  and  an  answer  received  from  the  secre- 
tary of  the  company,  stating  that  the  risk  would  be  taken  at 
seventy  cents  on  the  thousand  dollars,  the  premium  amounting  to 
the  sum  of  fifty-six  dollars.  The  agent  stated  in  the  application 
to  the  company  the  reason  why  it  had  not  been  signed  by  Tayloe ; 
that  he  had  gone  to  the  state  of  Alabama  on  business,  and  would 
not  return  till  February  following;  and  that  he  was  desired  to 
communicate  to  him  at  that  place  the  answer  of  the  company. 

On  receiving  the  answer,  the  agent  mailed  a  letter  directed  to 
Tayloe,  under  date  of  the  2d  of  December,  advising  him  of  the 


Sec.  3.]  tayloe  v.  merchants  fire  ins.  co.  529 

terms  of  the  insurance,  and  adding :  ' '  Should  you  desire  to  effect 
the  insurance  send  me  your  check  payable  to  my  order  for  $57, 
and  the  business  is  concluded. "  The  additional  dollar  added  was 
for  the  policy. 

This  letter,  in  consequence  of  a  misdirection,  did  not  reach 
Tayloe  until  the  20th  of  the  month;  who,  on  the  next  day,  mailed 
a  letter  in  answer  to  the  agent,  expressing  his  assent  to  the  terms, 
and  inclosing  his  check  for  the  premium  as  requested.  He  also 
desired  that  the  policy  should  be  deposited  in  the  bank  for  safe 
keeping.  This  letter  of  acceptance  was  received  on  the  31st  at 
Fredericksburg  by  the  agent,  who  mailed  a  letter  in  answer  the 
next  day,  communicating  to  Tayloe  his  refusal  to  carry  into  effect 
the  insurance,  on  the  ground  that  his  acceptance  came  too  late, 
the  center  building  of  the  dwelling  house  in  the  meantime,  on  the 
22d  of  the  month,  having  been  consumed  by  fire. 

The  company,  on  being  advised  of  the  facts,  confirmed  the  view 
taken  of  the  case  by  their  agent,  and  refused  to  issue  the  policy, 
or  pay  the  loss. 

A  bill  was  filed  in  the  court  below  by  the  insured  against  the 
company,  setting  forth,  substantially,  the  above  facts,  and  pray- 
ing that  the  defendant  might  be  decreed  to  pay  the  loss,  or  for 
such  other  relief  as  the  complait^  might  be  entitled  to. 

1.  Several  objections  have  been  taken  to  the  right  of  the  com- 
plainant to  recover,  which  it  will  be  necessary  to  notice;  but  the 
principal  one  is,  that  the  contract  of  insurance  was  not  complete 
at  the  time  the  loss  happened,  and  therefore,  that  the  risk  pro- 
posed to  be  assumed  had  never  attached. 

Two  positions  have  been  taken  by  the  counsel  for  the  com- 
pany for  the  purpose  of  establishing  this  ground  of  defense. 

1.  The  want  of  notice  to  the  agent  of  the  company  of  the 
acceptance  of  the  terms  of  the  insurance ;  and, 

2.  The  non-payment  of  the  premium. 

(After  deciding  these  contentions  in  favor  of  the  complainant.) 

3.  It  has  also  been  objected,  that  the  plaintiff  had  an  ade- 
quate remedy  at  law,  and  was  not,  therefore,  under  the  necessity 
of  resorting  to  a  court  of  equity;  which  may  very  well  be 
admitted. 

But  it  by  no  means  follows  from  this,  that  a  court  of  chancery 
will  not  entertain  jurisdiction.  Had  the  suit  been  instituted 
before  the  loss  occurred,  the  appropriate,  if  not  the  only,  remedy 
would  have  been  in  that  court,  to  enforce  a  specific  performance, 


630  THE   COMPLAINT.  [CllAP.  III. 

and  compel  the  company  to  issue  the  policy.     And  this  remedy 

is  as  appropriate  after  as  before  the  loss,  if  not  as  essential,  in 

order  to  facilitate  the  proceedings  at  law.  No  doubt,  a  count  could 

have  been  framed  upon  the  agreement  to  insure,  so  as  to  have 

maintained  the  action  at  law.     But  the  proceedings  would  have 

been  more  complicated  and  embarrassing  than  upon  the  policy. 

^^^^^^^   The  party,  therefore,  had  a  right  to  resort  to  a  court  of  equity  to 

^^»x,  r^«^-\>Ax,  compel  the  delivery  of  the  policy,  either  before  or  after  the  hap- 

\^/«-^5j^-^^    pening  of  the  loss:  and  being  properly  in  that  court  after  the 

•  ^^jXi-  ^^^^  happened,  it  is  according  to  the  established  course  of  pro- 

r^z,j^^__  '^       ceeding,  in  order  to  avoid  delay  and  expense  to  the  parties,  to 

,A«— 0/-.^it  *-  proceed  and  give  such  final  relief  as  the  circumstances  of  the  case 

3^,,^  t,.«>^>^-    demand. 

X,  \^Q^  •  V>Jc       Such  relief  was  given  in  the  case  of  INIotteux  v.  London  Assur- 
v^/^-o:-A.  -ance  Company  1  Atk.,  545),  and  in  Perkins  v.  Washington  Insur- 
W  (v^iQ*-*-  •  ance  company  (4  Cow.,  645).    (See,  also,  1  Duer.,  66  and  110,  and 
2  Phillips,  583.) 

As  the  only  real  question  in  the  case  is  the  one  which  a  court 
.  of  equity  must  necessarily  have  to  decide,  in  the  exercise  of  its 

.  *Ar^  ff  peculiar  jurisdiction  in  enforcing  a  specific  execution  of  the 
vt^  -8j^J,^»A.fctt.  agreement,  it  would  be  an  idle  technicality  for  that  court  to  turn 
"V^T^*^  »  the  party  over  to  his  remedy  at  law  upon  the  policy.  And,  no 
*■  '  .  ^  doubt,  it  was  a  strong  sense  of  this  injustice  that  led  the  court  at 
fV""^  an  early  day  to  establish  the  rule,  that,  having  properly  acquired 
z^  J  -  I  jurisdiction  over  the  subject  for  a  necessary  purpose,  it  was  the 
^"^^  ^  duty  of  the  court  to  proceed  and  do  final  and  complete  justice 
between  the  parties,  where  it  could  as  well  be  done  in  that  court  ns 
in  proceedings  at  law. 

{4.  It  is  further  objected,  that,  admitting  the  claim  to  be 
properly  enforceable  in  equity,  still,  the  complainant  is  not 
entitled  to  the  relief  sought,  on  the  ground  that  the  bill  contains 
no  sufficient  statement  of  the  contract,  or  of  the  performance  cf 
the  conditions,  and  also  for  want  of  a  proper  prayer. 

We  are  of  the  opinion  that  these  several  objections  are  not  well 
founded.  The  contract  as  set  forth  we  have  already  considered. 
*  and  held  complete  and  binding  on  the  company ;  and  further,  that 
the  denial  of  having  entered  into  the  agreement^  and  refusal  to 
issue  the  policy,  also  set  forth,  are  sufficient  ground  upon  which 
to  infer  a  waiver  of  the  production  of  the  preliminary  proofs,  as 
a  condition  of  liability ;  and  if  sufficient  ground  to  infer  a  waiver, 
it  was  of  course  unnecessary  to  set  forth  these  proofs  in  the  bill. 


Sec.  3.  J  tayloe  v.  merchants  fire  ins.  go.  531 

And  as  to  the  prayer,  it  is  sufficient  to  say  that  the  prayer  for 
general  relief  which  is  here  found,  will  enable  the  court  to  make 
^uch  a  decree  as  the  complainant  may  show  himself  entitled  to, 
upon  the  facts  set  forth  in  the  stating  part  of  the  bill. 

The  pleading  is  not  very  formal,  nor  very  cautiously  drawn, 
and,  in  the  absence  of  the  prayer  for  general  relief,  might  have 
led  to  embarrassment  in  making  the  proper  decree  in  the  case. 
There  is  a  specific  prayer  for  a  decree  for  the  loss,  but  it  would 
have  been  more  formal  and  appropriate,  regarding  the  ground 
of  jurisdiction  in  these  cases,  to  have  added  also  a  prayer  for  a 
specific  performance  of  the  agreement  to  insure. 

But  the  particular  relief  permitted  under  a  general  prayer,"^ 
where  the  statement  in  the  body  of  the  bill  is  sufficient  to  entitle  ^ 
the  party  to  it,  meets  the  difficulty  suggested,  and  well  warrants 
the  decree  proposed  to  be  entered.     (Story,  Eq.  PL,  §§  41,  42  J 
and  cases.) 

Upon  the  whole,  without  pursuing  the  examination  further,  we 
are  of  opinion  that  the  decree  of  the  court  below  should  be 
reversed,  and  that  the  cause  be  remitted,  with  directions  to  the 
court  to  take  such  further  proceedings  therein  as  may  be  neces- 
sary to  carry  into  effect  the  opinion  of  this  court. 

Decree  reversed  with  directions.  j. 

0^     5)ii^^/vv~ 


HUTCHINSON  v.  AINSWORTH. 

73  Cal,  452.     [1887.] 

Searles,  C.  J.  This  cause  was  here  on  a  former  appeal,  the 
decision  of  which  is  reported  in  63  Cal.,  286.  In  1878,  the  defend- 
ants Anna  Ainsworth  and  A.  G.  Ain.sworth,  made  their  promis- 
sory note  to  Margaret  M.  Hutchinson  for  $3,500,  payable  on  the 
third  day  of  September,  1879,  with  interest  at  ten  per  cent,  per 
annum.  The  note  was  given  for  money  loaned  to  said,  defendant 
by  plaintiff,  who  is  a  married  woman,  and  was  her  separate 
property.  To  secure  the  payment  of  the  promissory  note,  Anna 
Hutchinson  executed  the  mortgage  to  foreclose  which  this  action 
is  brought.  The  property  mortgaged  was  the  separate  property 
of  Anna  Ainsworth,  who  is  a  married  woman.  The  acknowledg- 
ment made  by  said  Anna  Ainsworth  is  found  to  have  been  prop- 


532  THE   COMPLAINT.  [CllAl'.  iH. 

erly  taken ;  but  the  notary,  in  certifying  thereto,  failed  to  specify 
that  he  made  her  acquainted  with  the  contents  of  the  instrument, 
separate  from,  and  without  the  hearing  of,  her  husband.  A  copy 
of  the  certificate  is  set  out  in  the  report  of  the  case  on  the 
former  appeal.  In  that  appeal  this  court  reversed  the  judgment 
and  order  of  the  court  below,  upon  the  ground  of  error  in  refus- 
ing plaintiff's  application  to  amend  her  complaint  so  as  to  show 
that  the  acknowledgment  was  actually  taken  in  compliance  with 
the  statute,  with  a  view  to  a  judgment  correcting  the  certificate, 
as  provided  by  section  1202  of  the  Civil  Code. 

This  action  was  brought  March  25,  1880.  Upon  the  return  of 
the  cause  to  the  court  below,  and  on  the  11th  day  of  j\Iay,  1883, 
the  complaint  was  amended,  averring  the  acknowledgment  to 
have  been  properly  taken,  and  asking  that  the  certificate  be 
reformed  and  corrected.  To  this  amended  complaint  the  defend- 
ant demurred,  upon  the  grounds,  among  others:  (1)  That  there 
is  a  non-joinder  of  parties  defendant,  in  that  Will  II.  Burrill,  the 
notary  who  took  the  acknowledgment,  should  have  been  made  a 
defendant;  (2)  That  two  causes  of  action  are  joined  in  the  same 
complaint  without  being  separately  stated;  (3)  That  the  cause 
of  action  is  barred  by  the  Code  Civil  Proc.  subd.  4,  §  338.  The 
demurrer  was  overruled,  and  this  action  was  assigned  as  error. 

The  demurrer  was  properly  overruled.  The  notary  was  not  a 
necessary  party  defendant  to  the  reformation  of  his  certificate. 
The  reformation,  if  made  at  all,  could  only  be  so  made  by  the 
judgment  of  the  court.    Wedel  v.  Herman,  59  Cal.,  515. 

The  objecton  of  the  demurrer  is  not  that  two  causes  of  action 
are  improperly  united,  but  that  they  are  contained  in  the  com- 
plaint, and  are  not  separately  stated.  Waiving  the  question 
whether  or  not  a  proper  uniting  of  two  causes  of  action  in  the 
same  ccmiplaiut,  without  stating  them  separately,  is  a  cause  for 
demurrer,  we  are  of  the  opinion  the  complaint  states  but  one 
cause  of  action.  "An  action  is  an  ordinary  proceeding  in  a 
court  of  justice  by  which  one  party  prosecutes  another,  for  the 
enforcement  or  protection  of  a  right,  the  redress  or  prevention  of 
a  wrong,  or  the  punishment  of  a  public  offense."  Code  Civil 
Proc,  §  22.  The  facts  upon  which  the  plaintiff's  right  to  sue  is 
based,  and  upon  which  the  defendant 's  duty  has  arisen,  coupled 
with  the  facts  which  constitute  the  latter 's  wrong,  make  up  the 
cause  of  action.  If  these  facts,  taken  together,  give  a  unity  of 
right,  they  constitute  but  one  cause  of  action. 


Sec.  3.]  hutchinson  v.  ainsworth.  533 

In  equity  the  relief  or  the  enforcement  of  a  single  right  may 
be  varied,  and  the  facts  essential  to  such  relief  may  be  set  out 
without  objection,  as  auxiliary  to  the  right  to  be  enforced.  In 
the  case  at  bar  the  object  of  the  action  is  to  collect  a  single  debt, 
and  to  enforce  a  single  lien,  to  redress  a  single  wrong.  To  accom- 
plish this  object  dual  relief  is  sought,  but  this  circumstance,  so 
frequent  in  equity,  does  not  constitute  two  causes  of  action.  Pom- 
eroy,  at  section  459  of  his  work  on  Remedies,  in  discussing  this 
question,  uses  the  following  language:  "Actions  brought  to 
reform  instruments  in  writing,  such  as  policies  of  insurance  and 
other  contracts,  mortgages,  deeds  of  conveyance,  and  the  like,  and 
to  enforce  the  same  as  reformed  by  judgments  for  the  recovery  of 
the  money  due  on  the  contracts,  or  for  the  foreclosure  of  the 
mortgages,  or  for  the  recovery  of  possession  of  the  land  conveyed 
by  the  deed,  fall  within  the  same  general  principle.  One  cause 
of  action  only  is  stated  in  such  cases,  however  various  may  be 
the  reliefs  demanded  and  granted. ' '  Meyer  v.  Van  Collen,  7  Abb. 
Pr.,  222;  McClurg  v.  Phillips,  49  Mo.,  315. 

The  judgment  and  order  appealed  from  are  affirmed. 


IMPERIAL  SHALE  BRICK  CO.  v.  JEWETT. 

169X.Y.,li3.     [1901.] 

Landon,  J.  The  plaintiff  brought  this  action  to  reform  a  con- 
tract of  insurance,  and,  as  reformed,  to  recover  against  the  19 
defendants  as  joint  insurers  of  a  cargo  of  pressed  bricks  shipped 
by  plaintiff  at  Cleveland,  Ohio,  about  October  2,  1895,  to  Wauke- 
gan,  111.  The  cargo  became  a  total  loss,  and  did  not  reach  its 
destination.     *     *     * 

The  defendants  complain  that,  against  their  objection  and 
exception,  the  action  was  tried  at  the  equity  term,  instead  of 
before  a  jury.  The  plaintiff  applied  for  insurance  upon  its  cargo 
in  transit  by  lake  from  Cleveland,  Ohio,  to  Waukegan,  111.  By 
mistake,  Waukegan,  Mich.,  was  written  in  the  certificate,  and  not 
observed  by  the  plaintiff  until  after  the  loss.  There  is  no  such 
port  as  Waukegan,  Mich.  The  plaintiff  properly  asked  in  its 
complaint  to  have  the  certificate  corrected  in  this  respect.  If  the 
defendants  had  admitted  by  their  answer  the  statement  of  facts 
alleged  in  this  behalf  in  the  complaint,  as  they  did  upon  the  trial, 


534  THE   COMPLAINT.  [ChAP.  III. 

the  equitable  issue  would  not  have  arisen ;  but  they  did  not,  but 
interposed  a  denial^  and  thus  the  case  properly  came  on  for  trial 
at  the  equity  term.  The  complaint  does  not  contain  separate  equi- 
table and  legal  causes  of  action,  but  it  asks  such  relief  in  equity 
as  would,  if  granted,  permit  a  recovery  as  at  common  law.  But 
the  complaint  stated  no  common  law  cause  of  acton,  except  as 
conditioned  upon  the  equitable  relief,  and  hence  the  right  to 
recovery  rested  primarily  upon  equitable  grounds.  The  court, 
having  obtained  jurisdiction  in  equity  may,  if  it  grant  the  equi- 
table relief,  retain  jurisdiction,  and  render  that  further  judgment 
which  properly  follows  thereupon.  Wheelock  v.  Lee,  74  N.  Y., 
496,  cited  by  defendants,  was  precisely  the  reverse.  In  that 
case,  there  were  four  causes  of  action  at  law  for  the  recovery  of 
money.  Conditioned  upon  such  recovery  was  the  demand  that  cer- 
tain securities  be  surrendered.  Of  course,  in  such  a  case,  success  in 
the  actions  at  law  is  a  condition  precedent  to  any  equitable  relief, 
and  the  joinder  of  the  former  with  the  latter  ought  not  to  deprive 
the  defendant  of  a  jury  trial  of  the  former. 

We  have  examined  the  other  errors  assigned  by  the  defendants, 
but  do  not  think  any  of  them  justify  the  reversal  of  the  judgment 
of  the  trial  term  except  as  to  the  defendant  Hickman. 

The  order  of  the  Appellate  Division  should  be  reversed,  with 
costs,  and  judgment  of  the  trial  court  affirmed,  except  as  to  the 
defendant  Hickman,  and,  as  to  him,  order  affirmed,  and  judg- 
ment absolute  ordered  in  his  favor  on  the  stipulation,  with  costs. 

Parker,  C.  J.,  and  O'Brien,  Bartlett,  Martin,  Vann,  and 
CuLLEN,  J.  J.,  concur.* 


KABRICH  v.  STATE  INSURANCE  COMPANY. 

/  48  Mo.  App.,  393.     [1892.] 

Gill,  J.  On  November  5,  1888,  the  defendant  by  its  policy 
insured  for  the  period  of  one  year  one  W.  G.  Nicum  against  loss 
or  damage  by  fire  on  his  farm  house,  in  Audrain  county,  '  *  loss  if 
any,  payable  to  George  Kabrich,  mortgagee,  as  his  interest  may 
appear."  On  Aug.  18,  1889,  the  building  was  destroyed  by  fire. 
Subsequently,  the  mortgagee  Kabrich  brought  this  suit.  In  his 
petition,  and  all  in  one  count,  in  addition  to  the  common  allega- 


*See  also  German  Ins.  Co.  v.  Davis,  6  Kan.  App.  268. 


Sec.  3.]  kabrich  v.  state  ins.  co.  535 

tions  common  to  actions  at  law  on  the  contract  of  insurance,  it 
was  further  alleged  that  certain  conditions  printed  in  the  body 
of  the  policy  and  relating  to  the  occupancy,  transfer  of  the  prop- 
erty, etc.,  were  wrongfully,  fraudulently,  or  by  mistake  inserted, 
and  the  court  was  asked  to  strike  out  such  conditions,  and  reform 
the  instrument.  The  defendant  moved  and  the  court  required  the 
plaintiff  to  elect  upon  which  of  the  two  causes  of  action,  ttus  set 
out  in  one  count,  he  would  proceed  to  trial.  The  plaintiff  elected 
to  try  the  action  at  law  on  the  policy,  and  thereupon  the  court 
struck  out  the  matter  relating  to  the  reformation  of  the  contract. 

Among  other  matters  of  defense,  the  answer  set  out  that  by  the 
terms  of  the  policy  if  the  title  of  the  property  was,  after  the  issu- 
ing thereof,  transferred  or  changed  without  the  written  consent 
of  the  company  indorsed  on  the  policy,  then  said  policy  should  be 
void.  The  evidence  showed  unquestionably  that  about  two  months 
after  the  policy  was  issued  the  assured  Nicum  did  sell  and  convey 
the  property  to  one  Kelley,  and  to  this  the  defendant  company 
had  not  consented,  nor,  indeed,  had  any  notice.  At  the  close  of 
the  evidence  the  court  instructed  the  jury  as  follows :  ' '  The  court 
instructs  the  jury  that  the  deed  read  in  evidence,  from  W.  G. 
Nicum  to  Julia  Kelley,  conveyed  the  property  insured  after  the 
issue  of  the  policy,  and  before  the  fire,  and  that  fact,  under  the 
terms  of  the  policy,  rendered  it  void,  as  the  company  failed  to 
consent  thereto  in  writing,  and  the  jury  will,  therefore,  render  a 
verdict  for  defendant." 

From  a  verdict  and  judgment  for  defendant  the  plaintiff 
appealed. 

1.  The  court  correctly  required  plaintiff  to  elect  upon  which 
of  the  two  causes  of  action,  stated  in  one  count  of  the  petition,  he 
would  proceed  to  trial.  Clearly  plaintiff  had  intermingled  in  the 
one  count  two  causes  of  action;  one  to  reform  the  polic}',  which 
was  equitable,  and  triable  alone  before  the  court,  and  the  other 
an  action  at  law  on  the  policy,  which  was  triable  by  a  jury.  While 
the  code  permits  the  joining  of  legal  and  equitable  suits,  yet  they 
must  be  separately  stated  and  relief  separately  prayed,  so  that 
each  may  be  separately  tried,  the  one  by  the  court,  and  the  other, 
if  desired,  by  thejury.  Henderson  v.  Dickey,  50  ]Mo.,  161.  He 
might  with  propriety  have  amended  his  petition  and  separated 
the  two  causes  into  two  distinct  counts,  and  then  tried  each  sep- 
aratel3^  But  he  failed  to  amend,  and  chose  to  submit  his  case  on 
the  one  count, — the  legal  action  on  the  policy;  thereby  in  effect 


536  THE    COMPLAINT.  [ChAP.  111. 

abaiidouing  the  cause  in  equity.  Electing  to  prosecute  one  of  the 
two  causes  of  action  (which  have  been  erroneously  combined  in 
one  count)  is  necessarily  the  abandonment  of  the'  other.  The 
plaintiff  then  having  relinquished  the  suit  to  reform  the  policy, 
he  was  not  entitled  to  introduce  evidence  only  pertinent  thereto; 
and,  hence,  the  court  did  not  err  in  excluding  such  proffered  evi- 
dence.   And  this  answers  counsel 's  point  number  2.     *     *     * 

Judgment  affirmed* 


LATTIN  V.  McCARTY. 
41  N.  Y.,  107.     [1869.] 

Appeal  by  the  plaintiff  from  a  judgment  of  the  General  Term 
of  the  Supreme  Court  in  the  fifth  dstrict,  affirming  a  judgment  of 
the  Special  Term,  sustaining  a  demurrer  to  the  complaint.  The 
demurrer  was  at  first  stricken  out  as  frivolous  at  Special  Term 
in  the  seventh  district ;  but  on  appeal  to  the  General  Term,  this 
was  reversed  (17  How.,  140),  and  the  demurrer  then  argued  at 
the  Special  Term  in  the  fifth  district  with  the  result  already 
stated. 

A  deed  of  certain  premises  in  the  city  of  Auburn,  was  executed 
by  E.  Corning,  to  the  defendant,  Michael  McCarty,  at  the 
request  of  Stanford,  who  had  purchased  the  premises  of  Mc- 
Carty, and  for  the  sole  purpose  of  completing  his  (Stanford's) 
claim  of  title. 

This  deed  was  delivered  to  Stanford  (and  never  to  McCarty), 
with  that  intent,  and  Stanford  deposited  for  record  in  the  clerk's 
office. 

At  this  time  Stanford  had  mortgaged  to  Fitch  &  Griswold,  who 
had  foreclosed  and  conveyed  to  Lattin,  the  plaintiff,  who  had 
repaired  the  premises  and  put  in  a  tenant. 

McCarty  somehow  heard  that  there  was  a  deed  from  Corning 
to  him,  recorded  in  the  office;  and  he  went  to  the  tenant  and 
bribed  him  to  leave,  took  possession  himself,  now  holds  adversely 
to  plaintiff,  and  claims  to  own  the  premises  by  virtue  of  that 
deed. 


*  Accord:     Harrison  v.  Juneau  Bank,  17  Wis.  340;  Guernsey  v.  Am. 
Ins.   Co..  17  Minn.   104. 

See  also  McHoney  v.  German  Ins.  Co.,  44  Mo.  App.  426. 


Sec.  3.]  lattin  v.  m'cabty.  537 

McCarty's  former  interest  in  the  premises,  was  under  a  con- 
tract from  Corning  to  him;  and  in  selling  out  to  Stanford  he  had 
only  assigned  the  contract,  and  Stanford,  thinking  McCarty  had 
deeded  to  him,  originated  the  mistake  in  getting  a  deed  and 
recording  the  deed  from  Corning  to  McCarty.  These  facts  were 
set  up  in  detail  in  the  complaint. 

The  relief  asked  for  by  plaintiff  is : 

1st.     Possession. 

2d.  A  conveyance  of  McCarty's  apparent  title,  by  quit  claim 
or  otherwise,  etc.,  and  that  he  be  forever  barred  from  setting  up 
or  asserting  his  pretended  title. 

McCarty's  demurrer  is  on  the  ground: 

1st.  That  the  complaint  does  not  set  out  facts  sufficient  to 
constitute  a  cause  of  action. 

2d.     That  there  is  a  defect  of  parties  defendants. 

3d.  That  several  separate  and  distinct  causes  of  actions  have 
been  improperly  united. 

Hunt,  Ch.  J.  The  demurrer  of  the  defendant,  McCarty,  was 
sustained,  on  the  ground  that  inconsistent  causes  of  action  were 
included  in  the  complaint.    This  decision  was  erroneous. 

1.  The  complaint  contains  but  a  single  cause  of  action,  towit : — ■ 
For  relief  against  the  deed  under  which  McCarty  fraudulently 
obtained  possession.  It  is  quite  true  that  while  the  purpose  of 
the  complaint  is  single,  it  seeks  to  accomplish  that  result  by  sev- 
eral operations.  It  seeks  to  have  the  fraudulent  deed  set  aside, 
and  when  that  is  done,  it  will  follow  that  the  plaintiff  shall  be 
awarded  the  possession  of  the  property.  The  first  is  a  means 
simply  of  obtaining  the  second.  The  one  is  the  cause  of  action; 
the  other  is  the  fruit  of  the  action.  It  is  said  that  the  two  causes 
of  action  are : — First,  to  vacate  the  fraudulent  deed,  and  second, 
an  action  of  ejectment  to  obtain  the  possession  of  the  premises. 
Not  so.  The  plaintiff  has  no  legal  title  to  the  premises,  and 
admits  that  he  cannot  sustain  an  action  of  ejectment  for  that 
reason.  His  cause  of  action  is  simply  to  vacate  the  deed.  If 
that  is  done,  he  insists,  as  a  result,  that  the  court  will  at  once 
award  him  the  possession  of  the  property.  It  would  be  unreason- 
able, he  argues,  to  compel  him  to  resort  to  another  action  to  obtain 
that  to  which  he  is  clearly  entitled,  and  which  the  court  may 
award  in  the  action  before  it.  I  think  the  reasoning  sound.* 
2.     Assuming  that  the  complaint  does  contain  the  two  causes 

♦Accord:    Duvall  v.  Tinsley.  54  Mo.  90. 


538  THE   COMPL.UNT.  [ChAP.  III. 

of  action,  as  is  insisted,  the  judgment  was  still  erroneous.  The 
argument  principally  relied  upon  to  sustain  the  demurrer,  is  this, 
that  the  two  causes  of  action  are  of  different  characters ;  one,  an 
action  of  ejectment,  being  an  action  at  law,  the  other  an  action  to 
set  aside  a  deed  as  fraudulent,  and  of  an  equitable  nature;  that 
the  latter  may  be  tried  by  the  court,  while  in  the  former,  the 
party  is  entitled  to  have  his  case  passed  upon  by  a  jury.  The 
eodifiers  labored  assiduously  to  anticipate  and  to  overrule  this 
objection.  They  recited  in  the  preface  to  the  code,  that  "it  is 
expedient  that  the  present  forms  of  actions  and  pleadings,  in 
cases  at  common  law,  should  be  abolished;  that  the  distinction 
between  legal  and  equitable  proceedings,  should  no  longer  con- 
tinue; and  that  an  uniform  course  of  proceeding  in  all  cases 
should  be  established."  In  section  69  (original  section  62)  it  is 
further  enacted  that  "the  distinction  between  actions  at  law  and 
suits  in  equity,  and  the  form  of  all  such  actions  and  suits  hereto- 
fore existing,  are  abolished :  and  there  shall  be  in  this  state,  here- 
after, but  one  form  of  action  for  the  enforcement  or  protection  of 
private  rights  and  the  redress  of  private  wrongs,  which  shall  be 
denominated  a  civil  action."  And  in  section  167,  it  is  provided, 
"that  the  plaintiff  may  unite  in  the  same  complaint  several  causes 
of  action,  whether  they  be  such  as  have  been  heretofore  denom- 
inated legal  or  equitable,  or  both,"  under  the  conditions  therein 
specified.  In  these  provisions  and  in  others,  the  distinction  between 
legal  and  equitable  causes  of  action,  is  recognized.  There  is  no 
attempt  to  abolish  this  distinction ;  which  would  be  quite  unavail- 
ing. The  attempt  is  to  abolish  the  distinction  between  the  forms 
of  action  and  the  modes  of  proceeding  in  the  several  cases.  The 
difficulty  under  consideration  has  also  been  expressly  overruled 
in  this  court,  in  the  cases  that  I  shall  presently  cite. 

The  case  of  Phillips  v.  Gorham  (17  N.  Y.  R,  270),  is  an 
authority  in  favor  of  the  plaintiff'.  It  was  there  held  that  in  an 
action  to  recover  specific  real  property,  the  plaintiff  may  attack 
a  deed  under  which  the  defendant  claims  title,  as  well  upon 
grounds  cognizable  at  law  as  upon  those  cognizable  in  a  court  of 
chancery,  and  that  such  proceedings  can  be  had  and  heard  in  a 
single  suit.  This  conclusion  was  reached  after  an  able  and  learned 
opinion  by  Johnson,  chief  judge,  in  which  both  the  provisions  of 
the  constitution  and  the  code  are  fully  considered. 

In  Lamb  v.  Buckmiller  (17  N.  Y.  R.,  626),  Roosevelt,  J.,  in 
delivering  the  opinion  of  the  court,  says :    "I  shall  assume,  as  has 


Sec.  3.]  lattin  v.  m'carty.  539 

been  several  times  decided,  that  legal  and  equitable  relief  may  be 
asked  for  in  one  action,  and  that  the  plaintiff  claiming  under  a 
defective  deed,  and  showing  sufficient  grounds  for  its  reform, 
may  have  the  same  remedy  as  if  he  had  brought  two  actions,  one 
to  reform  the  instrument,  the  other  to  enforce  it  as  reformed." 

Bidwell  V.  The  Astor  Mutual  Insurance  Co.  (16  N.  Y.  R.,  263), 
was  an  action  to  reform  a  policy  of  insurance,  and  to  recover  dam- 
ages for  the  breach  of  contract  so  reformed  in  the  same  action. 
On  the  proposition  that  an  action  should  be  brought  to  reform 
the  policy,  and  that  a  separate  action  should  be  brought  to  recover 
the  damages,  the  court  says:  "There  was  nothing  in  the  objec- 
tion that  the  court  should  have  stopped  with  reforming  the  policy, 
and  turned  the  plaintiff  over  to  a  new  action  to  recover  their 
damages.  The  rule  of  courts  of  equity  was,  when  they  had 
acquired  jurisdiction  and  had  the  whole  merits  before  them,  to 
proceed  and  do  complete  justice  between  the  parties."  (Page 
267.) 

The  New  York  Ice  Co.  v.  The  Northwestern  Insurance  Co.  (23 
X.  Y.  R.,  357),  was  also  an  action  to  reform  a  policy  of  insurance 
and  to  recover  damages.  In  giving  what  appears  to  be  the  unani- 
mous opinion  of  the  court,  Comstock,  J.,  uses  this  language:  "It 
was  erroneous  to  turn  the  plaintiff'  out  of  court  on  the  mere 
ground  that  he  had  not  entitled  himself  to  the  equitable  relief 
demanded,  if  there  was  enough  left  of  his  case  to  recover  the  sum 
in  which  he  was  insured."  In  discussing  Reubens  v.  Joel  (3 
Kern.,  488) ,  he  adds :  ' '  The  doctrine  of  the  previous  cases  favor- 
able to  uniting  in  the  same  action  legal  and  equitable  grounds  for 
relief,  was  not  intended  to  be  disturbed,  and  a  case  in  this  court 
of  a  later  date  has  reaffirmed  that  doctrine  in  the  most  explicit 
manner.  (Phillips  v.  Gorham,  17  X.  Y.  R.,  270).  In  this  case 
the  point  was  most  strongly  presented,  and  it  was  decided  upon 
the  fullest  consideration.  I  think  it  proper  to  mention  that  the 
reason  why  I  expressed  no  opinion  in  the  case  was,  that  I  hesi- 
tated in  regard  to  the  power  of  the  legislature,  under  the  consti- 
tution, to  abrogate  all  distinctions  between  legal  and  equitable 
actions.  That  such  was  the  expressed  intention  of  the  legislature 
in  the  code  of  procedure,  I  never  had  any  doubt.  Both  of  these 
questions  must  now  be  considered  at  rest."    (Page  360.) 

I  can  find  no  countenance  for  this  demurrer  in  the  allegation 
that  the  causes  of  action,  assuming  that  there  are  two,  are  improp- 
erly united  in  the  same  complaint.     (Section  144.)     The  joinder 


540  THE    COMPLAINT.  [ChaP.  III. 

of  several  causes  of  acton  is  expressly  authorized,  whether  legal 
or  equitable  in  their  character,  or  both,  where  they  both  arise  out 
of  the  same  transaction,  or  transactions  connected  with  the  same 
subject  of  action.  (Section  167.)  Such  is  the  present  case.  The 
transaction  is  one  out  of  which  both  causes  of  action  arise.  By 
the  agreement  between  the  plaintiff  and  McCarty,  the  former  was 
entitled  to  the  deed  from  Mr.  Corning  of  the  premises  in  ques- 
tion. By  the  error  of  the  plaintiff  and  the  fraud  of  McCarty, 
the  latter  obtained  this  deed  himself.  The  plaintiff  now  seeks  to 
have  the  title  transferred  to  himself  through  a  correction  of  these 
wrongs.  Both  claims  are  harmonious  and  consistent  with  each 
other.  They  arise  out  of  the  same  transaction,  or  certainly  out  of 
transactions  connected  with  the  same  subject  of  action. 

Judgment  of  the  general  term  and  special  term  "should  be 
reversed. 


WHETSTONE  v.  BELOIT  STRAW  BOARD  COMPANY. 

76  Wis.,  613.     [1890.] 

Orton,  J.  The  plaintiff  alleged  in  his  complaint  that  he  was 
employed  in  and  about  the  shop  or  building  in  which  the  defend- 
ant manufactured  straw  building  board  by  the  use  of  dangerous 
steam  machinery,  and  by  the  use  of  steam  rotaries  made  of  boiler 
iron,  which  were  in  an  unsafe  and  dangerous  condition,  to  the 
knowledge  of  the  defendant,  or  w^hich  it  might  have  known  by 
reasonable  care,  and  which  was  unknown  to  the  plaintiff,  and 
that,  by  reason  of  their  unsafe  and  dangerous  condition,  one  of 
them  burst  or  exploded,  and  scattered  the  fragments  thereof 
about  said  building,  some  of  which  struck  the  plaintiff,  and  injured 
him  very  greatly,  and  caused  him  to  be  in  such  a  condition  of 
mind  that  he  did  not  know  what  he  was  doing,  and  could  not,  and 
did  not,  realize  his  situation,  or  appreciate  the  effect  of,  or  carry 
on,  any  business  transaction.  And  the  plaintiff,  alleged  further, 
that  while  he  was  in  such  condition  of  body  and  mind,  the  defend- 
ant, through  its  officers  and  agents  procured  and  induced  him 
to  sign  a  certain  receipt,  set  out  in  the  complaint,  by  which  he 
released  the  defendant  forever  from  all  liability  by  reason  of  any 
and  all  injuries  sustained  by  him  as  aforesaid,  or  any  result  there- 
from, and  from  all  actions,  or  causes  of  action,  against  the  defend- 


Sec.  3.]  whetstone  v.  beloit  straw  board  go.  541 

ant  by  reason  thereof;  that,  at  the  time  of  signing  said  instru- 
ment, he  (the  plaintiff)  was  not  in  a  condition  to  realize  what  he 
was  doing,  or  the  effect  thereof;  and  that  the  defendant  took 
advantage  of  his  condition,  and  procured  the  said  instrument  by- 
fraud.  The  plaintiff  prayed  judgment  for  $20,000  damages,  and 
that  said  receipt  or  release  be  declared  void  and  delivered  up. 
This  is,  substantially,  the  complaint.  The  defendant  demurred 
to  the  complaint,  (1)  that  in  it  several  causes  of  action  were 
improperly  united;  and  (2)  that  it  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action.  The  demurrer  was  overruled.  The 
first  ground  was  the  only  one  pressed  on  the  argument.  The 
learned  counsel  of  the  appellant  contended  that  the  matter  of  the 
release  constituted  a  separate  and  distinct  cause  of  action  that 
could  not  be  joined  with  the  main  action. 

It  is  quite  obvious  that  the  complaint  states  only  one  cause  of 
action.  The  matter  of  the  release  is  simply  ancillary  to  the 
action.  It  is  merely  to  set  aside  the  release,  which  stood  in  the 
way  of  recovery  in  the  action.  It  is  subservient  or  subsidiary  to 
the  action,  and  is  necessary  to  a  recovery.  The  plaintiff  might 
have  waited  for  the  defendant  to  set  up  the  release  in  defense, 
and  then  have  attacked  it  by  a  replication ;  but  he  chose  to  set  it 
up  in  his  complaint  and  avoid  it,  which  is  strictly  correct  plead- 
ing. Lusted  V.  Railway  Co.,  71  Wis.,  391,  36  N.  W.  Rep.,  837.  In 
that  case  the  receipt  was  set  up  in  the  answer,  and  the  issue 
thereon  was  first  tried.  In  Damon  v.  Damon,  28  Wis.,  510,  the 
plaintiff  first  set  up  her  causes  for  a  divorce,  and  secondly  asked 
for  alimony,  and  thirdly  prayed  that  a  certain  deed  made  by  the 
defendant  to  a  third  person  in  fraud  of  her  rights  be  set  aside, 
and  such  third  person  was  made  a  party.  The  defendant 
demurred  for  misjoinder  of  causes  of  action,  as  here.  This  court 
held  that  there  was  but  one  cause  of  action,  and  that  the  matter 
of  setting  aside  the  deed  was  to  enable  the  court  to  enforce  its 
judgment  of  alimony,  if  it  adjudges  a  transfer  of  property  to  the 
plaintiff,  and  that  it  is  only  ancillary  or  incident  to  the  action. 
That  is  a  stronger  ease  of  two  separate  causes  of  action  than  here. 
In  Moon  v.  McKnight,  54  Wis.,  551,  11  N.  W.  Rep.,  800,  the  action 
was  against  A  and  B,  who  are  husband  and  wife,  and  H,  who  held 
a  mortgage  of  land  from  B,  to  have  a  prior  deed  from  A  and  B 
to  plaintiff,  absolute  on  its  face,  declared  a  mortgage;  to  have  a 
subsequent  recorded  deed,  purporting  to  have  been  executed  by 
the  plaintiff  to  B,  conveying  to  her  the  same  land,  set  aside  as  a 


542  THE   COMPLAINT.  [ChAP.  III. 

forgery;  and  to  have  the  plaintiff's  mortgage  foreclosed  against 

all  the  defendants.     This  complaint  was  also  demurred  to  for 

improper  joinder  of  separate  causes  of  action.     This  court  held 

that  there  was  virtually  but  one  cause  of  action.  These  apparently 

separate  causes  of  action,  and  the  relief  therein,  "were  essential 

and  a  prerequisite  to  the  plaintiff's  foreclosure."     They  were 

obstructions  to  the  main  relief,  and  had  to  be  removed  to  make 

the  plaintiff's  judgment  of  foreclosure  effectual.     Many  other 

like  cases  might  be  cited,  if  it  was  not  too  plain  a  question  for 

/     argument  or  authority.    The  order  of  the  circuit  court  is  affirmed, 

I     and  the  case  remanded  for  further  proceedings  according  to  law.* 

\       Lyon,  J.,  took  no  part. 


(c)     'Causes  That  May  Be  United. 
V  PLANKINTON  v.  HILDEBRAND. 

89  Wis.,  209.     [1895.] 

Action  to  enforce  pledge  of  stock  given  to  secure  a  promissory 
note  and  to  obtain  personal  judgment  against  the  maker  and 
indorser  of  the  note. 

PiNNEY,  J.  *  *  *  .  The  complaint  contains  allegations  of 
the  liability  of  the  defendants,  Andrew  Hildebrand,  as  maker, 
and  of  Frank  A.  Lappen  and  Owen  Lappen,  Jr.,  as  indorsers,  of 
the  note  in  question,  and  shows  that  the  Lappens  had  been 
charged  as  indorsers  thereof ;  and  personal  judgment  is  demanded 
against  these  three  defendants  for  any  deficiency  that  may  remain 
unpaid  after  proper  application  of  the  proceeds  of  the  stock. 
Such  a  judgment  would  be  for  a  purely  legal  demand.  It  is  no 
part  of  the  ordinary  functions  of  a  court  of  equity  to  entertain 
suits  for,  or  to  enforce,  purely  legal  demands,  such  as  are  founded 
on  promissory  notes,  indorsements,  guaranties  and  the  like.  We 
have  not  been  referred  to  any  authority  showing  that  such  a  judg- 
ment or  decree  could  be  given  by  a  court  of  equity.  In  the 
absence  of  some  statute  extending  their  power,  courts  of  equity, 
in  foreclosure  cases,  have  invariably  left  the  complainant  to  his 
remedy  at  law  for  the  part  of  the  mortgage  debt  not  satisfied  by 

♦Compare  Hancock  v.  Blackwell.  139  Mo.  440. 


Sec.  3.]  plankinton  v.  hildebrand.  543 

the  foreclosure  and  sale.  Statutory  provisions  of  the  character 
referred  to  were  adopted  in  Wisconsin  during  its  territorial 
existence,  and  continued  in  force  until,  by  the  adoption  of  the 
code,  they  were  repealed.  The  result  was  that  it  was  held  by  this 
court,  in  several  cases,  after  the  repeal  of  the  statute,  that  the 
legal  cause  of  cation  on  the  note  or  bond  could  not  be  joined  with 
theequitable  one  to  foreclose  the  mortgage,  unless  both  causes  of 
action  affected  all  parties  to  the  action ;  the  statute  then  in  force 
on  the  subject  of  joinder  of  causes  of  action  being  identical  with 
Rev.  Sts.,  §  2647.  In  Sauere  v.  Steinbauer,  14  Wis.,  70,  75,  it 
was  held  that  such  a  joinder  could  be  made  where  there  was  but 
a  single  defendant,  who  was  personally  liable  for  the  mortgage 
debt ;  and  the  cases  of  Turner  v.  Pierce,  34  Wis.,  658,  and  Pinkum 
V.  City  of  Eau  Claire,  81  Wis.,  301,  51  N.  W.,  550,  much  relied 
on  by  the  appellant,  are  cases,  also,  where  there  was  but  a  single 
defendant.  The  rule  thus  laid  down  as  to  joinder  of  causes  of 
action  was  firmly  and  invariably  upheld  until  the  statute  was 
restored  by  Chapter  243,  Laws  1862  (Rev.  Sts.,  §  3156)  ;  Bor- 
den V.  Gilbert,  13  Wis.,  670;  Sauer  v.  Steinbauer,  14  Wis.,  70, 
75 ;  Gary  v.  Wheeler,  Id.,  281 ;  Jesup  v.  Bank,  Id.,  331 ;  Stillwell 
V.  Kellog,  Id.,  461 ;  Faesi  v.  Goetz,  15  Wis.,  231.  We  have  not 
been  referred  to,  nor  are  w^e  aware  of,  any  case  in  this  court,  on 
this  point,  to  the  contrary.  All  these  cases  proceed  upon  the 
ground  that,  though  stated  in  one  count,  there  are,  in  such  cases, 
two  causes  of  action, — one  equitable,  and  the  other  legal.  The 
mere  form  of  pleading  can  make  no  difference.  The  objection  to 
the  character  of  the  complaint  and  the  joinder  of  causes  of  action 
cannot  be  thus  obviated.  Wiles  v.  Suydam,  64  N.  Y,,  173.  And 
the  objection  of  misjoinder  of  causes  of  action  may  be  taken  by  a 
defendant  affected  by  both  causes  of  action,  or  by  only  one  of 
them.  Hoffman  v.  Wheelock,  62  Wis.,  435,  22  N.  W.,  713,  716; 
Nichols  V.  Drew,  94  N.  Y.,  22.  The  court  must  look  to  the 
intrinsic  nature  of  the  claims  embodied  in  the  complaint,  and  the 
character  of  the  relief  demanded.  Faesi  v.  Goetz,  supra.  It  seems 
that  in  the  code  of  New  York  on  the  subject  of  "Joinder  of 
Causes  of  Action, ' '  similar  to  the  provision  of  our  statute,  it  was 
found  necessary  to  make  exceptions  as  to  mortgage  foreclosures, 
and  in  respect  to  which,  as  in  Wisconsin,  special  provisions  were 
found  necessary.  Nichols  v.  Drew,  94  N.  Y.,  26.  We  see  no 
reason  for  departing  from  what  has  been  so  frequently — and,  as 
we  think,  rightly — decided  upon  this  point,  and  that  it  must  be 


5'44  THE   COMPLAINT.  [CilAP.  III. 

left  to  the  legislature,  in  its  wisdom,  in  the  spirit  of  much  needed 
legal  reform,  to  adapt  Section  3156,  to  legal  foreclosures  of 
pledges,  mortgages  of  personal  estate,  and  other  liens.  The  stat- 
ute on  the  subject  of  "Joinder  of  Causes  of  Action"  (section 
2647),  provides  for  "uniting  in  the  same  complaint  several  causes 
of  action  v^hether  they  be  such  as  were  formerly  denominated 
legal  or  equitable,  or  both,  where  they  arise  out  of  the  same  trans- 
actions connected  with  the  same  subject  of  action.  *  *  *  But 
the  causes  of  action  so  united  *  *  *  must  alfect  all  the  par- 
ties to  the  action."  Although  the  stock  pledged  was  issued  to 
Fred  Ilildebrand  originally,  there  is  no  claim  that  he  ever  became 
in  any  way  personally  liable  for  the  debt  evidenced  by  the  note ; 
and  the  causes  of  action  based  upon  the  note  and  indorsement  of 
it,  for  judgment  for  deficiency,  do  not  affect  him  in  the  least. 
Many  cases  were  referred  to  in  this  court  as  sustaining,  in  prin- 
ciple, the  joinder  of  causes  of  action  in  this  case;  but  we  think 
that  they  are  readily  distinguishable  from  the  present  case,  and, 
in  the  main,  depended  upon  the  principles  laid  down  in  the  books 
on  the  subject  of  multifariousness  in  bills  in  equity,  where  there 
was  reallj'  but  one  cause  of  action,  and  it  was  sought  to  charge 
one  or  more  of  the  defendants,  who  had  acquired  and  held  a 
portion  only  of  the  property  or  fund,  the  subject  of  the  action, 
acquired  by  fraud  or  affected  by  some  trust.  But  under  the 
equity  practice,  as  it  existed  before  the  code,  and  in  the  absence 
of  a  statute  justifying  it,  a  bill  framed  as  this  complaint  is  would 
have  been  clearly  multifarious,  and  we  have  not  been  referred  to 
any  authority  sustaining  a  different  conclusion,  A  review  of  the 
cases  cited  in  this  connection  would  not,  we  think,  serve  any  use- 
ful purpose.  For  the  reasons  stated,  there  is,  therefore,  in  the 
present  case,  a  fatal  misjoinder  of  causes  of  action,  and  for  this 
reason  the  demurrers  to  the  complaint  were  rightly  sustained. 
The  orders  of  the  circuit  court  are  affirmed. 


Sec.  3.]  clark  v.  great  northern  r,  r.  co.  545 

CLARK  V.  GREAT  NORTHERN  RAILROAD  CO. 

31  Wash.,  658.     [1903.] 

The  complaint  in  this  case,  to  which  the  conductor,  as  well  as 
the  company,  was  made  a  party  defendant,  contained  two  counts ; 
the  first  sought  a  recovery  for  a  breach  of  the  contract,  to  carry ; 
and  the  second  sought  damages  for  the  wrongful  expulsion  of 
the  plaintiff  from  the  train. 

Mount,  J.  *  *  *  We  think  this  demurrer  should  have 
been  sustained  upon  the  second  ground  stated.  It  is  readily 
seen  that  the  first  cause  of  action  is  based  upon  a  violation  of 
contract  of  carriage;  that  the  second  cause  is  based  upon  the 
alleged  tort  of  the  company  and  its  agent  Willerton  in  removing 
the  respondent  from  the  train,  using  excessive  force  and  violence 
therein.  The  statute  regulatng  the  joinder  of  causes  of  action  in 
this  state  (section  4942,  2  Ballinger's  Ann.  Codes  &  St.),  is  as 
follows: — "The  plaintiff  may  unite  several  causes  of  action  in 
the  same  complaint,  when  they  arise  out  of, —  (1)  contract, 
express  or  implied;  or  (2)  injuries,  with  or  without  force,  to  the 
person.  *  *  *  But  the  causes  of  action  so  united  must  affect 
all  the  parties  to  the  action  and  not  require  different  places  of 
trial,  and  must  be  separately  stated."  This  statute  does  not 
authorize  the  joinder  of  causes  ex  contractu  with  causes  ex  delicto 
in  the  same  complaint.  Magee  v.  0.  R.  &  N.  Co.  (C.  C),  46  Fed., 
735.  It  merely  authorizes  the  joinder  of  causes  of  like  character ; 
that  is,  any  number  of  causes  upon  contract  may  be  united  in  one 
complaint  when  the  parties  and  the  places  of  trial  are  the  same. 
So  also  any  number  of  causes  of  action  for  injuries  with  or  with- 
out force,  where  the  parties  and  place  of  trial  are  the  same,  may 
be  united  in  one  complaint.  But  actions  on  contract  cannot  be 
united  with  actions  on  tort.  Thompson's  Commentaries  on  the 
Law  of  Negligence,  §  3263;  15  Ed.  PI.  &  Pr.,  p.  1124;  Fetter 
on  Carriers,  §§  422,  425 ;  Boyland  v.  Hot  Springs  R.  R.  Co.,  132 
U.  S.,  148,  10  Sup.  Ct.,  50,  33  L.  Ed.,  290. 

Again,  the  appellant  Willerton  was  not  a  proper  party  to  the 
first  cause  of  action.  If  the  respondent  had  a  contract  of  car- 
riage with  the  railway  company,  and  Willerton,  acting  as  agent 
for  the  appellant,  had  violated  the  agreement  by  refusing  to  com- 
ply with  the  terms  of  the  contract,  the  appellant  railroad  com- 
pany was  alone  responsible  for  the  damage  caused  therebv.  The 
35 


546  THE    COMPLAINT.  [ClIAP.  III. 

afjent,  not  being  a  party  to  the  contract,  was  not  liable  for  the 
performance  or  non-performance  of  it.  For  this  reason  also  the 
causes  were  improperly  united.  The  demurrer  should,  there- 
fore, have  been  sustained.     *     *     * 

For  these  reasons  the  cause  is  reversed,  and  remanded  for 
further  proceedings  in  accordance  with  this  opinion. 


MeCLURE  v.  WILSON. 

43  N.  Y.  S.  {App.  Div.),  209.     [1897.] 

RuMSEY,  'J.  The  complaint  contains  three  causes  of  action. 
The  first  alleges  that  the  Life  Union  was  a  domestic  corporation, 
of  which,  on  the  29th  of  November,  1893,  the  plaintiff  was 
appointed  receiver,  and  that  he  qualified.  The  complaint  further 
alleges  that  from  the  16th  of  June,  1891,  to  the  20th  of  May, 
1892,  the  defendant  was  one  of  the  directors  of  the  corporation, 
and  that,  as  such,  he  and  a  majority  of  the  other  directors  agreed, 
in  consideration  of  the  payment  to  them  by  one  LouLs  P.  Levy  of 
the  sum  of  $15,000,  that  a  certain  number  of  the  directors  of  'the 
corporation  would  resign  as  such,  and  allow  Lev>'  and  such  per- 
sons as  he  might  designate  to  be  elected  directors,  and  that  the 
defendant  and  his  associates  would  turn  over  the  assets  and  con- 
trol of  the  corporation  to  Levy  and  the  persons  designated  by 
him  as  directors.  The  complaint  then  goes  on  to  allege  that  this 
transaction  was  carried  out;  that  the  directors  resigned  pursuant 
to  the  agreement,  and  Levy  was  elected  president,  and  his  asso- 
ciates were  elected  directors,  and  the  management  of  the  corpora- 
tion was  transferred  to  them;  and  that  the  defendant  and  his 
associates  received  from  Levy  the  sum  of  $15,000,  of  which  $2,000 
was  paid  to  the  defendant,  and  applied  by  him  to  his  own  use. 
The  complaint  then  alleges  that,  at  the  time  of  receiving  this  sum 
of  $2,000,  the  defendant  knew  that  the  money  so  paid 
to  him  was  a  part  of  the  said  sum  of  $15,000,  and 
that  the  same  was  the  property  of  and  belonged  to 
the  said  Life  Union,  and  that  the  Life  Union  was  not  indebted 
to  the  defendant,  and  not  under  any  obligation  to  pay  him  any 
sum  whatever.  The  first  cause  of  action  concludes  with  the  allega- 
tion that  the  defendant  received  said  sum  of  money  for  the  use 
and  benefit  of  the  Life  Union,  and  therefore  should  account  to 


Sec.  3.]  m'clure  v.  wilson.  547 

the  plaintiff  for  the  said  sum  of  $2,000.  The  second  cause  of 
action  contains  substantially  the  same  allegations  as  the  first, 
except  that  it  does  not  allege  that  the  defendant  received  to  his 
personal  use  any  part  of  the  $15,000,  and  the  subsequent  allega- 
tions in  that  count.  It  contains,  however,  an  allegation  that  the 
agreement  between  Levy  and  his  associates  and  the  defendant  and 
his  associates  was  fraudulent  and  void,  and  in  violation  of  the 
duties  which,  as  directors,  they  owed  to  the  said  corporation ;  that, 
in  consideration  of  the  unlawful  transfer  to  said  Levy,  this 
defendant  and  his  associates  received  the  sum  of  $15,000,  which 
they  wrongfully  and  unlawfully  applied  to  their  own  use.  The 
second  cause  of  action  then  continues,  that  the  said  sum  of 
$15,000  was  the  property  of  the  Life  Union  and  its  creditors,  and 
its  unlawful  appropriation  by  the  defendant  has  damaged  the 
said  Life  Union  in  the  sum  of  $15,000.  For  the  third  cause  of 
action  the  complaint  sets  out  the  transaction  substantially  as  set 
out  in  the  second  cause  of  action,  and  goes  on  with  allegations  to 
the  effect  that,  by  reason  of  the  mismanagement  and  misconduct 
by  Levy,  the  corporation  became  insolvent,  and  the  fund  held  by 
it  for  the  payment  of  death  claims  were  wasted,  and  that  the 
death  claims,  amounting  to  $77,861,  became  due,  and  have  not 
been  paid,  and  alleges  that  the  said  Life  Union  and  its  creditors 
sustained  damage  to  the  amount  of  $77,861. 

The  demurrer  is  upon  that  ground  that  causes  of  action  upon 
contract  are  joined  with  causes  of  action  for  tort.  The  demurrer 
was  overruled  at  special  term.  It  was  claimed  by  the  plaintiff  that 
the  order  was  correct,  for  the  reason  that  the  demurrer  was  not 
good  in  form,  because  it  does  not  state  that  there  is  a  misjoinder 
of  causes  of  action.  But  it  is  not  necessary,  in  all  cases,  that  the 
demurrer  should  be  taken  in  the  precise  words  of  the  code.  It  is 
only  required  that  the  ground  of  demurrer  should  be  so  plainly 
stated  that  it  may  be  clearly  understood.  This,  we  think,  the 
demurrer  does.  It  should  specify  the  causes  of  action  which  are 
improperly  united,  where  such  misjoinder  is  the  ground  of  the 
demurrer.  It  is  sufficient  simply  to  state,  as  is  done  here,  that 
one  cause  of  action,  naming  it,  is  united  with  another  cause  of 
action,  naming  it,  which  the  code  does  not  permit  to  be  joned; 
and  it  is  not  even  necessary  to  negative  that  part  of  section  484 
which  prescribes  that  certain  causes  of  action  arising  out  of  the 
same  transaction  may  be  joined.  The  question,  then,  is  properly 
raised,  and  it  remains  to  be  seen  whether  the  objection  is  well 
taken. 


548  THE   COMPLAINT.  [ClIAP.  TIL 

The  first  cause  of  action  is  brought,  clearly,  to  recover  money- 
received  by  the  defendant,  but  which  belonged  to  the  Life  Union. 
It  is  apparent  from  the  allegations  that  the  money  sought  to  bo 
recovered  was  a  portion  of  the  money  paid  by  Levy  to  the  defend- 
ant and  his  associates  for  the  consideration  of  the  transfer  of  the 
control  of  the  corporation.  It  is  not  alleged,  nor  is  it  to  be 
inferred  from  the  allegations  in  the  complaint  that  the  money 
was  paid  out  of  the  treasury  of  the  corporation,  because  the  alle- 
gation is  that  the  money  was  to  be  paid  by  Levy  as  a  considera- 
tion for  getting  control  of  the  corporation.  It  is  true  that  the 
statement  of  the  cause  of  action  contains  an  allegation  that  the 
money  was  the  property  of  the  Life  Union,  but  that  is  plainly  a 
statement  of  the  legal  conclusion  which  the  pleader  supposed  to 
arise  from  the  allegations  of  the  facts  under  which  the  money  was 
paid  and  the  purposes  for  which  it  was  received.  The  first  cause 
of  action  proceeds  upon  the  theory  that  there  was  a  bargain 
between  Levy  and  the  defendant,  with  others,  which  was  carried 
into  effect  by  the  payment  of  money,  and  that  that  money 
belonged,  when  paid,  to  the  corporation;  and  the  plaintiff,  as 
receiver,  seeks  to  recover  it  back.  It  is  a  cause  of  action  for 
money  had  and  received.  The  theory  of  it  is  that  the  bargain,  if 
not  a  valid  one,  is  affirmed  by  the  receiver,  and  he  seeks  to  recover 
that  which  was  paid  to  the  defendant  as  a  consideration  for  the 
transfer  of  the  control  of  the  corporation,  and  which,  he  insists, 
should  have  been  paid  by  the  defendant  to  the  corporation.  The 
cause  of  action  stands  upon  the  contract  which  the  law  implies  on 
the  part  of  one  who  has  received  money  which  he  should  pay  over 
to  another,  to  make  such  payment.  It  is  a  cause  of  action  upon 
contract,  and  nothing  else.  Trust  Co.  v.  Gleason,  77  N.  Y.,  400, 
403.  The  same  thing  is  true  of  the  second  cause  of  action.  It  is 
just  as  clear  that  the  third  cause  of  action  proceeds  upon  an 
entirely  different  theory.  It  sets  up  that  the  agreement  was 
fraudulent  and  void,  and  made  in  violation  of  the  duties  which 
the  directors  owed  to  the  corporation,  and  does  not  seek  to  recover 
anything  upon  the  basis  of  the  existence  of  the  contract.  The 
foundation  of  this  cause  of  action  is  that  the  transaction  was 
fraudulent  and  void,  and  in  violation  of  the  defendant's  duty, 
and  that,  as  the  result  of  it,  the  corporation  was  so  badly  man- 
aged that  it  was  deprived  of  a  considerable  amount  of  its  assets. 
The  relief  demanded  is  that  the  plaintiff'  may  recover  the  amount 
of  the  assets  of  which  the  corporation  was  deprived,  as  the  result 


Sec.  3.]  m'clure  v.  wilson.  549 

of  this  illegal  act.  This  cause  of  action  is  plainly  for  a  tort.  So 
it  here  appears  that  the  first  and  second  causes  of  action  upon  a 
contract  are  joined  with  a  third  cause  of  action  for  a  tort.  This 
cannot  be  done.    Keep  v.  Kaufman,  56  N.  Y.  332. 

But  it  is  said  that  these  three  causes  of  action  arise  out  of 
the  same  tranaction,  and  for  that  reason  they  may  be  joined, 
under  subdivision  9  of  section  484  of  the  Code  of  Civil  Pro- 
cedure. It  is  not  necessary  to  consider  whether  this  claim  is  well 
founded  or  not.  By  the  subsequent  portions  of  the  sections  just 
cited,  no  causes  of  action  can  be  united  unless  they  belong  to  one 
of  the  foregoing  subdivisions,  and  are  consistent  with  each  other. 
These  two  causes  of  action  are  entirely  inconsistent.  The  first 
and  second  are  based  upon  the  theory  that  the  contract  is  valid 
between  the  parties,  and  has  been  adopted  by  the  corporation, 
and,  because  of  that,  the  money  belongs  to  the  corporation,  and 
should  have  been  paid  over  to  it.  The  third  proceeds  upon  the 
theory  that  the  contract  is  invalid  and  illegal,  and  no  rights  were 
acquired  under  it,  and  repudiates  it,  and  seeks  to  recover  dam- 
ages for  what  was  done  by  virtue  of  it.  For  these  reasons,  the 
misjoinder  is  not  saved  by  the  ninth  provision  of  section  484  of 
the  Code,  and  the  demurrer  is  well  taken. 

The  judgment  overruling  the  demurrer  must  be  reversed,  with 
costs,  and  judgment  ordered  for  the  defendant  upon  the 
demurrer,  with  costs,  with  leave  to  the  plaintiff  to  amend  the 
complaint  within  20  days,  upon  the  payment  of  the  costs  of  the 
demurrer  and  of  this  appeal.    All  concur.* 


GREAT  WESTERN  COAL  CO.  v.  CHICAGO  G.  W.  RY.  CO. 

98  Fed.  {C.C.  A.),  27 i.     [1899.] 

Thayer,  Circuit  Judge.  The  general  question  which  arises 
upon  this  record  is  whether  the  trial  court  committed  an  error 
in  compelling  the  Great  Western  Coal  Co.,  the  plaintiff  below 
and  the  plaintiff  in  error  here,  to  elect,  in  advance  of  the  trial, 
upon  which  one  of  two  causes  of  action  stated  in  its  petition  it 
would  proceed  to  trial.  The  motion  to  compel  an  election,  which 
was  made  in  behalf  of  the  Chicago  Great  Western  Railway  Com- 

*Accord:    Enterprise  Soap  Works  v.  Sayers,  51  Mo.  App.  310. 


550  THE    COMPLALNT.  [CuAP.  III. 

pany,  the  defendant  below  and  the  defendant  in  error  hero,  was 
sustained,  notwithstanding  an  objection  which  was  duly  inter- 
posed by  the  plaintifi'  company.  Having  been  compelled  by  a 
peremptory  order  of  the  trial  court  tu  choose  as  between  the 
two  counts  contained  in  its  petition,  it  elected  to  stand  on  the 
second  count,  whereupon  the  court  ordered  and  adjudged  that 
the  first  count  be  dismissed  at  the  costs  of  the  plaiutilf.  A  trial 
was  afterwards  had  on  the  second  count,  which  resulted  in  a 
verdict  and  judgment  in  favor  of  the  defendant  company. 

The  first  count  of  the  petition  was  an  ordinary  declaration 
upon  a  contract,  for  a  breach  thereof;  and  the  second  count  was 
likewise  a  declaration  upon  a  contract,  and  claimed  damages  for 
a  breach  of  the  same.  It  will  suffice  to  say,  generally,  concerning 
the  two  counts  of  the  petition,  without  reciting  either  of  them  at 
length,  that  in  the  first  count  the  plaintiff  company  alleged,  in 
substance,  that  it  had  theretofore  made  a  contract  with  the 
defendant  company  to  supply  to  the  latter  a  large  quantity  of 
coal  at  certain  of  its  coaling  stations  along  the  line  of  its  road 
at  an  agreed  price  of  $1.45  per  ton ;  that  it  had  proceeded  with 
the  execution  of  said  contract  up  to  a  certain  point,  and  had 
delivered  a  certain  quantity  of  coal,  when  one  of  its  coal  veins 
gave  out,  or  proved  defective ;  that  it  thereupon  entered  into  an 
agreement  with  another  coal  company,  to-wit,  the  Maple  Grove 
Coal  &  Mining  Co.,  to  obtain  from  the  latter  at  its  mines  the 
amount  of  coal  which  was  necessary  to  enable  it  to  complete  its 
contract  with  the  defendant  company,  and  that  it  advised  the 
defendant  company  of  such  fact,  and  of  the  terms  of  the  arrange- 
ment; that  the  defendant,  when  so  advised  of  the  arrangement 
between  the  plaintiff  and  the  said  Maple  Grove  Coal  &  Mining 
Co.,  assented  to  the  arrangement  which  had  been  so  made,  and 
aoreed  to  take  the  remainder  of  the  coal  which  was  due  under  its 
contract  with  the  plaintiff  from  the  mines  of  the  said  other  coal 
company,  pursuant  to  the  terms  of  the  agreement  between  the 
plaintiff  and  said  other  company;  but  that  the  defendant  com- 
pany subsequently  refused  to  take  any  coal  from  the  mines  of 
said  Maple  Grove  Coal  &  Mining  company  in  fulfillment  of  the 
contract  with  the  plaintiff',  as  it  had  agreed  to  do,  although  the 
plaintiff  was  at  all  times  ready  and  willing  to  supply  coal  in  the 
quantities  needed,  and  strictly  in  accordance  with  the  modified 
agreement.  For  the  breach  of  the  aforesaid  agreement,  damages 
were  demanded  by  the  plaintiff'  in  the  sum  of  $65,000. 


Sec.  3.]  gt.  w.  coal  co.  v.  c.  g.  w.  ry.  go.  551 

The  second  count  of  the  plaintiff's  petition  was  the  same  as 
the  first  up  to  the  ad  damnum  clause  and  prayer  for  judgment. 
it  was  then  averred,  in  substance,  that  inasmuch  as  the  plaintiff' 
claimed  damages  from  the  defendant  in  the  sum  of  $50,000 
because  of  the  breach  of  the  contract  described  in  the  preceding 
paragraphs  of  the  count,  the  two  parties — that  is  to  say,  the 
plaintiff'  and  defendant— had  thereupon  entered  into  another 
agreement  for  the  purpose  of  compromising  and  settling  the  dif- 
ferences that  had  arisen  under  the  first  contract,  by  which  com- 
promise agreement  it  was  made  obligatory  upon  the  defendant 
to  pay  to  the  plaintiff'  the  sum  of  $24,000  in  installments  as  soon 
as  the  plaintiff'  had  made  a  settlement  with  said  Maple  Grove 
Coal  &  Alining  Company  which  would  be  effective  to  release  the 
defendant  company  from  all  obligations  on  its  part  to  take  more 
coal  from  said  Maple  Grove  Coal  &  Mining  Company.  The  plain- 
tiff next  averred  that  with  great  expense  and  difficulty  it  had 
caused  such  a  settlement  to  be  made  with  the  Maple  Grove  Coal 
&  Mining  Company,  but  that  the  defendant,  in  violation  of  the 
second  or  compromise  agreement,  had  wholly  failed  to  keep  and 
perform  the  same,  to  the  damage  of  the  plaintiff"  company  in  the 
sum  of  $24,000,  for  which  latter  amount  it  demanded  a  judg- 
ment. 

In  support  of  the  judgment  below  it  is  argued  that  the  two 
counts  of  the  petition  are  inconsistent,  and  that  for  that  reason 
the  motion  to  require  an  election  was  properly  sustained.  We 
think,  however,  that  this  view  of  the  case  is  erroneous,  since  the 
facts  alleged  in  the  first  count  are  obviously  consistent  with  those 
alleged  in  the  second,  in  that  proof  of  the  facts  averred  in  either 
count  would  in  no  wise  disprove  the  facts  stated  in  the  other. 
The  first  contract  may  have  been  made  and  broken  to  the  plain- 
tift"s  damage  in  the  sum  of  $65,000,  and  thereupon  the  parties 
may  have  entered  into  the  second  or  compromise  agreement, 
which  was  likewise  broken  to  the  damage  of  the  plaintiff  in  the 
sum  of  $24,000.  Clearly,  therefore,  there  is  no  inconsistency  in 
matters  of  fact,  and  it  is  such  an  inconsistency — that  is  to  say, 
where  the  proof  of  one  state  of  facts  alleged  disproves  the  other 

which  vitiates  a  pleading  under  the  Code  of  Procedure  of  the 

State  of  Missouri,  from  whence  this  case  comes.  Nelson  v. 
Brodhack,  44  Mo.  596;  Roberts  v.  Railway  Co.,  43  Mo.  App. 
287,  289.  It  is  true,  no  doubt,  and  that  point  may  be  conceded, 
that  the  plaintiff  below  was  not  entitled  to  a  judgment  under 


552  THE   COMPLAINT.  [ChAI'.  TIL 

both  counts  of  his  petition.  If  he  succeeded  in  recovering  a 
verdict  on  the  first  count,  there  was  no  basis  for  a  recovery  on 
the  second  count;  and  if  he  was  successful  in  establishing  the 
compromise  agreement  alleged  in  the  second  count,  then  it  fol- 
lowed that,  as  the  parties  had  liquidated  the  damages  occasioned 
by  the  breach  of  the  first  contract  by  nuitual  agreement,  the 
recovery  by  the  plaintiff  of  such  liquidated  damages  would 
necessarily  prevent  a  recovery  on  the  first  count.  Do  these 
considerations  lead  to  the  concliLsion  that  the  trial  court  could 
properly  compel  an  election  before  any  testimony  was  intro- 
duced? We  think  not.  Under  the  Missouri  Code  of  Procedure, 
it  is  the  established  doctrine  that  the  provision  of  the  Code  of 
that  state  which  requires  the  plaintiff  to  set  forth  in  his  peti- 
tion "a  plain  and  concise  statement  of  the  facts  constituting  a 
cause  of  action,  without  unnecessary  repetition"  does  not  prevent 
a  party  plaintiff  from  stating  the  facts  which  entitle  him  to  a 
single  recovery  in  different  counts,  and  so  varying  the  form  of 
the  statement  as  to  meet  any  possible  state  of  proof.  Brinkman 
V.  Hunter,  73  Mo.  172,  178,  179;  Lancaster  v.  Insurance  Co., 
92  Mo.  460,  467,  5  S.  W.  23. 

No  more  perspicuous  illustration  of  the  rule  last  stated  can 
be  given  than  is  afforded  by  the  case  first  cited  in  support  there- 
of. Certain  telegraphic  correspondence  between  the  parties  to 
the  suit  was  declared  upon  in  one  count  as  an  acceptance  of  a 
draft,  and  in  the  second  count  as  a  promise  to  accept.  It  is 
clear  that  the  correspondence  in  question  could  not,  in  point  of 
law,  be  both  an  acceptance  and  an  executory  agreement  to  ac- 
cept. It  was  either  the  one  or  the  other.  Nevertheless  the  court 
held  that  the  method  of  pleading  was  proper  under  the  Elissouri 
Code,  and  that,  while  there  could  be  only  one  recovery  or  satis- 
faction, the  court  could  not  compel  the  plaintiff  to  elect  upon 
which  count  of  his  petition  he  would  proceed  to  trial.  So,  in 
'  the  case  at  hand,  the  court  had  no  right  to  compel  the  plaintiff 
.  to  abandon  one  of  its  counts,  and  by  so  doing  part  with  a  possible 
right  of  recovery  before  any  evidence  had  been  adduced.  If  an 
^  election  can  be  compelled  in  such  cases  as  the  one  in  hand,  it 
certainly  ought  not  to  be  enforced  until  all  the  evidence  has 
been  adduced :  and  even  then  we  see  no  necessity  for  forcing  an 
election,  since  it  is  always  possible  to  submit  both  counts  to  the 
jury  under  proper  instructions,  advising  them  therein  in  an 
appropriate  way  that  the  plaintiff  is  entitled  to  but  one  satis- 


Sec.  3.]  gt.  w.  coal  co.  v.  c.  g.  w.  ry.  co.  553 

faction,  and  that  a  finding  for  plaintiff  on  one  count  will  neces- 
sarily compel  them  to  find  in  favor  of  the  defendant  on  the 
other.  In  the  case  at  bar,  and  in  all  others  of  a  similar  charac- 
ter, where,  by  reason  of  the  complexity  of  the  transaction,  it  is 
permissible,  as  in  the  state  of  Missouri,  to  state  a  single  cause 
of  action  in  different  ways  to  meet  the  proof,  the  practice  last 
suggested  is,  in  our  judgment,  the  proper -procedure. 

It  was  suggested  in  the  course  of  the  oral  argument,  as  we 
understood,  that,  although  the  plaintiff  company  had  been  com- 
pelled to  abandon  the  first  count  of  its  petition,  and  submit  to 
a  judgment  dismissing  that  count,  yet  the  cause  of  action  stated 
in  that  count  was  not  barred  by  the  adverse  judgment  subse- 
quently rendered  on  the  second  count,  and  that  the  plaintiff  was 
still  at  liberty  to  sue  on  the  count  which  he.  had  been  forced  to 
dismiss.  If  this  proposition  was  tenable,  it  would  serve  to  fur- 
ther convince  us  of  the  error  that  was  committed  in  compelling 
an  election,  since  the  Missouri  Code  of  Procedure  (Rev.  St.  Mo. 
1889,  §  2040)  permits  a  joinder  of  two  or  more  cau.ses  of  action 
in  the  same  petition  or  complaint  which  arise  out  of  "contract, 
express  or  implied,"  where  they  affect  "all  parties  to  the  action," 
and  do  not  "require  separate  places  of  trial."  The  two  counts 
of  the  petition  were  founded  on  contracts  existing  between  the 
plaintiff  and  the  defendant,  and  did  not  require  separate  places 
of  trial;  hence,  they  were  properly  joined  in  one  petition,  and 
from  the  standpoint  last  mentioned,  it  was  wrong  to  force  an 
election,  and  compel  two  trials  where  one  would  have  sufficed. 
The  suggestion,  however,  that  the  plaintiff  may  still  sue  on  the 
abandoned  count  does  not  seem  to  be  tenable,  since  in  such  cases 
as  the  one  in  hand,  where  a  plaintiff  having  the  right  to  a  single 
recovery  states  his  case  in  two  ways  to  meet  the  proof,  a  verdict 
and  judgment  rendered  on  either  count  is  a  bar  to  a  suit  on 
the  other.  This  is  the  Missouri  rule,  which  has  been  enforced 
by  several  local  decisions.  Owens  v.  Railroad  Co.,  58  Mo.  386, 
394;  Lancaster  v.  Insurance  Co.,  92  Mo.  460,  468,  5  S.  W.  23; 
Brownell  v.  Railroad  Co.,  47  Mo.  239.  The  result  is,  therefore, 
that  the  verdict  on  the  second  count,  which  was  rendered  in 
favor  of  the  defendant  below,  would  probably  prevent  the  plain- 
tiff from  bringing  another  action ;  but,  if  such  is  not  the  result 
of  that  verdct,  the  judgment  which  was  entered,  dismissing  the 
first  count  with  costs,  is  apparently  final  as  to  that  count  if  it  is 
allowed  to  stand.     The  action  of  the  trial  court,  therefore,  in 


554  THE    COMPLAINT.  [Ch.VP.  III. 

compelling  the  plaintiff  to  elect  as  between  the  two  statements 
of  its  cause  of  action  which  it  thought  proper  to  make,  has  de- 
prived it  of  the  right  to  a  hearing  on  the  first  count,  to  which, 
as  we  think,  it  was  clearly  entitled.     *     *     *     * 

The  two  counts,  not  having  been  tried  together,  must  now  1)0 
tried  separately,  to  afford  the  plaintiff  that  opportunity  for 
relief  which  the  law  requires. 

The  trial  on  the  second  count  of  the  petition  seems  to  have 
been  conducted  fairly,  and  no  errors  are  assigned  with  respect 
thereto  which  would  warrant  a  reversal  of  the  judgment  upon 
that  count.  The  record  shows  that  two  judgments  were  in  fact 
rendered, — one  upon  the  first  count,  which  was  erroneous,  be- 
cause the  plaintiff  was  wrongfully  compelled  to  abandon  that 
count;  and  one  upon  the  second  count,  which  is  not  aft'ected  by 
error.  Under  these  crcumstances,  we  think  the  judgment  on 
the  second,  count  .should  be  affirmed,  and  that  the  judgment  dis- 
missing the  first  count  should  be  reversed,  and  the  cause  re- 
manded for  a  ncAV  trial  on  the  first  count.     It  is  so  ordered. 

Sanborn,  Circuit  Judge  (dissenting)  :  If  the  counts  in  a  peti- 
tion state  facts  which  constitute  different  and  inconsistent  causes 
of  action,  the  plaintiff  should  be  compelled  to  elect  upon  which 
he  will  proceed  to  ti'ial;  but  if  he  merely  state  in  different  ways, 
the  same  facts  which  constitute  the  same  cause  of  action,  no 
election  should  be  required.  It  is  an  inconsistency  in  the  facts 
stated  which  constitute  the  causes  of  action,  and  not  in  the  ways 
of  stating  the  same  facts,  which  warrants  the  election.  The  au- 
thorities cited  in  the  opinion  of  the  majority  sustain  this  rule. 
They  were  all  cases  where  the  facts  constituted  but  one  cause 
of  action,  and  the  counts  were  merely  different  ways  of  stating 
these  facts.  Thus  the  two  counts  in  the  petition  in  the  case 
upon  which  the  opinion  of  the  majority  seems  to  rest — the  case 
of  Brinkman  v.  Hunter,  73  Mo.  172,  176 — were  different  ways 
of  stating  the  legal  liability  upon  a  single  telegram  in  these 
words:  "We  will  pay  Clark  and  Goldsby's  draft,  six  hundred 
eight  dollars  ninety-two  cents."  As  the  Court  said  at  page  179: 

"In  the  first  count  the  telegram  of  the  defendants  is  declared 
upon  as  an  acceptance  by  them  for  the  sum  of  $608.92.  In 
the  second  count,  the  plaintiffs  sue  for  a  breach  of  a  promise  to 
accept  contained  in  the  telegram." 

Here  was  but  a  single  cause  of  a<2tion,  based  on  a  single  fact 
stated  in  different  ways,  so  that  there  was  no  ground  for  an 


Sec.  3.]  gt.  w.  coal  co.  v,  c.  g.  w.  ry.  co.  555 

election.  There  was  no  inconsistency  in  the  facts  upon  which  the 
two  counts  rested,  because  they  were  based  upon  the  same  facts. 
The  distinction  between  such  a  case  and  one  in  which  the  facts 
stated  in  the  counts  of  a  petition  are  so  different  and  incon- 
sistent that,  if  those  stated  in  one  of  the  counts  exist,  the  cause 
of  action  stated  in  the  other  cannot  be,  is  plainly  pointed  out 
in  the  other  decisions  of  the  courts  of  Missouri  cited  in  the 
opinion  of  the  majority.  In  Nelson  v.  Brodhack,  44  Mo.  596, 
599,  the  supreme  court  of  that  state  said,  in  speaking  of  in- 
consistent defences : 

"Some  interpretation,  then,  of  the  term  'inconsistent  de- 
fenses' should  be  adopted,  if  possible,  that  shall  be  consistent 
with  the  statute,  and  secure  the  rights  of  defense.  That  right 
will  be  secured  if  the  consistency  required  be  one  of  fact  merely 
and  if  two  or  more  defenses  are  held  to  be  inconsistent  only 
when  the  proof  of  the  one  necssarily  disproves  the  other." 

In  Roberts  v.  Railway  Co.,  43  Mo.  App.  287,  289,  Judge  Rom- 
bauer,  in  delivering  the  opinion  of  the  court  said: 

"The  office  of  pleadings  is  to  produce  issues  of  fact  or  of 
law,  and,  as  the  proof  in  all  cases  must  correspond  with  the 
allegations  made,  it  would  lead  to  the  most  absurd  results  if  the 
plaintiff,  in  support  of  one  count  of  his  petition,  were  permitted 
to  adduce  evidence,  the  tendency  of  which  is  directly  to  contra- 
dict his  averments  in  another  count  of  the  same  petition.  It 
results  from  the  above,  as  the  correct  rule,  that  where  several 
counts  in  the  same  petition  are  inconsistent,  so  that  the  proof 
of  one  necessarily  disproves  the  other,  the  court  should,  if  re- 
quested by  the  defendant  to  do  so,  and  may  of  its  own  motion, 
compel  the  plaintiff'  at  any  time  to  elect  on  which  one  of  the 
inconsistent  counts  he  will  proceed  to  trial." 

There  are  three  established  tests  for  the  determination  of  the 
identity  of  causes  of  action.  They  are :  Will  the  same  evidence 
support  both  ?  Will  the  same  measure  of  damages  govern  both  ? 
And  will  a  judgment  against  one  bar  the  other?  Whalen  v. 
Gordon,  37  C.  C.  A.  70,  95  Fed.  305,  313;  Scovill  v.  Glasner, 
79  Mo.  449,  453;  McDonald  v.  Jackson,  55  Iowa  37,  7  N.  W. 
408.  Let  us  apply  these  tests  to  the  causes  of  action  pleaded 
in  the  petition  in  the  case  at  hand.  (1)  One  of  these  causes  is 
for  the  recovery  of  $65,000  for  the  breach  of  a  contract  to  pur- 
chase coal  at  certain  rates.  The  other  is  for  the  recovery  of 
$24,000,  which  the  defendant  promised  to  pay  in  compromise 


556  THE  COMPLAINT.  [Chap.  III. 

settlement  and  discharge  of  the  claim  for  the  $65,000.  The  only 
evidence  necessary  to  prove  the  first  cause  of  action  is  the  con- 
tract of  purchase,  the  refusal  to  perform  it,  and  the  profits  lost. 
But  this  evidence  will  not  sustain  the  second  cause.  That  cause 
requires  for  its  maintenance  proof  that  the  claim  for  $65,000 
was  compromised  and  settled,  and  that  the  defendant  agreed  to 
pay  $24,000  in  consideration  of  that  settlement.  Moreover,  proof 
of  these  additional  facts,  necessary  to  the  maintenance  of  the 
second  cause  of  action,  establishes  the  fact  that  the  first  cause 
does  not  exist,  and  that  the  liability  upon  which  it  rests  has 
been  settled  and  discharged.  The  proof  of  the  second  cause 
necessarily  disproves  the  existence  of  the  first.  (2)  The  meas- 
use  of  damages  in  the  first  cause  is  the  profits  which  the  plaintiff 
would  have  made  from  the  sale  of  coal.  In  the  second  cause  it 
is  the  amount  which  the  defendant  promised  to  pay  in  com- 
promise of  the  original  claim.  (3)  A  judgment  that  the  second 
cause  of  action  does  not  exist  is  no  bar  to  the  first  cause.  Wit- 
ness the  proposed  order  in  this  case  affirming  the  judgment  for 
the  defendants  on  the  second  cause  of  action  and  permitting 
the  plaintiff  to  proceed  to  recover  a  judgment  on  the  first  not- 
withstanding. Thus  each  of  the  three  established  tests  shows 
that  the  causes  of  action  in  question  here  differ  in  the  facts 
indispensable  to  their  respective  maintenance;  that  the  variance 
does  not  consist  in  different  ways  of  stating  facts  which  consti- 
tute the  same  cause  of  action,  but  that  the  facts  essential  to  the 
maintenance  of  the  cause  stated  in  the  second  count  of  the  peti- 
tion are  fatal  to  the  existence  of  that  set  forth  in  the  first  count ; 
that  the  facts  essential  to  the  maintenance  of  the  cause  set  forth 
in  the  first  count  are  insufficient  to  sustain  that  pleaded  in  the 
second,  and  that  a  judgment  against  the  cause  stated  in  one  of 
the  counts  is  no  bar  to  that  pleaded  in  the  other.  In  my  opinion, 
the  causes  of  action  pleaded  in  the  two  counts  of  this  petition 
were  inconsistent,  because  the  facts  that  were  indispensable  to 
the  maintenance  of  the  second  were  fatal  to  the  first,  and  be- 
cause a  judgment  against  the  second  is  no  bar  to  the  first.  I 
agree  with  the  trial  Judge  that  the  plaintiff  was  properly  com- 
pelled to  elect  on  which  of  these  inconsistent  causes  he  would 
proceed  to  trial,  and  I  think  the  judgment  below  should  be 
affirmed.  Babcock  v.  Harkins,  23  Vt.  561,  564;  Henderson  v. 
Boyd,  85  Tenn.  21,  1  S.  W.  498;  Perkins  v.  Hersey,  77  Mich. 
504,  513,  43  N.  W.  1021 ;  Soap  Works  v  Sayers,  51  Mo.  App. 


Sec.  3.]  gt,  w.  coal  co.  v.  c.  g.  w.  ry.  co.  557 

314,  316.  The  logical  and  necessary  result  of  these  views  is  that, 
inasmuch  as  the  two  causes  of  action  were  different  and  incon- 
sistent, and  the  plaintiff  was  compelled  to  abandon  the  first 
without  trial  on  its  merits,  he  would  be  entitled  to  commence 
and  to  maintain  another  action  thereon,  notwithstanding  the 
judgment  below,  so  that  the  practical  result  in  this  case  would 
differ  from  that  prescribed  only  in  the  award  of  costs  if  the 
judgments  were  affirmed,  and  I  think  they  should  be. 


RINARD  V.  0.  K.  C.  &  E.  R.  R.  CO. 

164  Mo.  270.      [1901.] 

Marshall,  J. :  This  is  an  action  for  damages  for  the  killing 
of  plaintiff's  husband,  caused  by  a  collision  of  two  trains  upon 
the  defendant's  road,  near  Gait,  in  Grundy  County,  on  Dec. 
23,  1897.  The  plaintiff  obtained  a  verdict  for  five  thousand  dol- 
lars and  the  defendant  appealed. 

The  amended  petition  contains  three  counts. 

The  first  count  alleges  that  Samuel  W.  Rinard,  plaintiff's 
husband,  was  in  the  employ  of  the  defendant  as  assistant  road- 
master,  and  that  it  was  his  duty  to  pass  over  the  defendant's 
road  and  to  ride  in  its  cars ;  that  on  Dec.  23,  1897,  while  riding 
in  the  caboose  of  one  of  defendant's  trains,  known  as  a  work 
train,  near  Gait,  it  collided  with  another  train  on  defendant's 
road,  and  he  was  injured  so  that  he  died.  It  further  alleges 
''that  the  train  upon  which  the  plaintiff's  said  husband  was 
riding  was  backing,  going  west  from  or  near  the  city  of  Gait  to 
the  town  of  Dunlap ;  that  the  other  said  train  so  colliding  with 
said  work  train  was  going  east  towards  the  city  of  Gait,  and 
that  whilst  so  running  and  moving  in  opposite  directions  upon 
the  same  track,  said  trains  collided,  the  engine  of  the  train  so 
going  east  and  the  caboose  of  the  work  train  aforesaid  striking 
each  other  with  great  force."  Then  after  alleging  that  the 
deceased  was  without  negligence  or  fault,  the  petition  charges 
that  the  collision  M-as,  "the  result  of  and  occasioned  by  the  negli- 
gence of  the  servants,  officers,  agents  and  employees  of  defend- 
ant while  running,  conducting  and  managing  said  locomotives, 
ears  and  trains  aforesaid." 

The  second  count  charges  that  the  deceased  was  engaged  "in 


558  THE    COMPLAINT.  ICllAP.  111. 

directing  and  managing  divers  other  persons,  and  assisting  them 
somewhat  in  the  taking  up  of  certain  rails  and  ties  upon  de- 
fendant's roadbed  and  railway  aforesaid,  and  in  replacing  and 
relaying  the  same  with  other  rails  and  ties,  and  in  doing  and 
directing  other  things  in  and  about  defendant's  roadbed  and 
tracks;  that  said  worjv  was  being  done  by  certain  person  or 
persons,  company  or  corporation,  being  styled  and  designated 
as  the  'Missouri  Railway  Construction  Company';  that  whether 
said  person  or  persons,  corporation  or  company,  was  in  fact  de- 
fendant or  an  association  of  persons,  composed  of  directors,  offi- 
cers or  other  persons  connected  with  the  defendant,  or  a  mere 
myth,  plaintiff  is  unable  to  say,  and  as  to  whether  said  work 
was  being  done  under  contract  between  defendant  and  said 
company — pretended  or  real — plaintiff  is  unable  to  state,  but 
plaintiff  avers  the  facts  to  be,  that  said  work  was  being  done 
with  the  knowledge  and  consent  of  the  defendant  and  its  officers. 
And  plaintiff  further  avers  the  facts  to  be,  that  in  the  discharge 
and  performance  of  her  said  husband's  (Samuel  W.  Rinard) 
duties,  it  became  necessary,  as  a  part  thereof,  (as  was  well 
known  by  defendant)  that  he,  said  Rinard,  ride  from  place  to 
place  upon  said  defendant's  railroad  upon  defendant's  trains, 
especially  its  work  or  construction  train  which  said  train  was 
provided  and  furnished  by  the  defendant  to  transport  him 
(said  S.  W.  Rinard)  from  place  to  place  in  safety  over  its  said 
line  of  road  where  said  S.  W.  Rinard,  in  the  discharge  of  his 
duties  aforesaid,  was  required  to  be  and  work,  and  that  under 
said  S.  "VV.  Rinard 's  employment  aforesaid,  he  was  required  to 
work  and  be  upon  divers  parts  of  the  defendant's  said  roadbed 
and  line  of  railway  betAveen  the  city  of  Trenton,  in  said  Grundy 
County,  and  the  city  of  Milan,  in  Sullivan  county,  IMissouri." 
The  collision  and  negligence  is  then  charged  as  in  the  first  count. 

The  third  count  charges  that  the  defendant,  for  a  valuable 
consideration,  undertook  to  transport  the  deceased  on  one  of  its 
trains  known  as  its  "work  extra"  or  "work  train,"  from  at  or 
near  the  city  of  Gait  to  the  village  of  Dunlap,  and  that  while 
so  riding  the  collision  occurred.  The  negligence  charged  was 
as  in  the  first  count. 

The  orginal  petition  contained  only  the  first  count.  When 
the  amended  petition  was  filed  the  defendant  moved  to  require 
the  plaintiff  to  elect  on  which  count  she  would  stand,  and  upon 
this  motion  being  overruled,  the  defendant  moved  to  strike  out 


Sec.  3.]  rixxVrd  v.  o.  k.  c.  &  e.  r.  r.  cx).  559 

the  second  and  third  counts,  as  being  a  departure  from  the 
original  cause  of  action  pleaded  and  as  being  inconsistent  with 
the  first  count,  and  upon  this  motion  being  overruled,  the  de- 
fendant moved  to  require  the  plaintiff  to  make  each  count  more 
definite  and  certain  by  specifying  the  officer,  agent,  or  employee 
whose  negligence  occasioned  the  injury,  and  upon  what  particu- 
lar train  such  officer  was  negligent,  and  this  motion  being  over- 
ruled the  defendant  filed  an  answer,  which  is  a  general  denial 
and  a  plea  of  contributory  negligence.     *     *     * 

(II.)  The  refusal  of  the  trial  court  to  compel  the  plaintiff  to 
elect  upon  which  count  in  the  petition  she  would  stand,  is  as- 
signed as  error. 

It  is  claimed  that  the  counts  are  inconsistent,  in  that  the  first 
count  alleges  that  deceased  was  an  employee  of  the  defendant  as 
assistant  roadmater,  while  the  second  count  alleges  that  he  was 
an  employee  of  the  Missouri  Railway  Construction  Company, 
and  the  third  count  alleges  that  he  was  a  passenger. 

On  the  other  hand,  the  plaintiff  contends  that  the  gravamen 
of  the  three  counts  is  the  negligent  running  of  the  trains — one 
or  both — which  caused  the  collision  that  produced  the  death,  and 
that  the  character  of  the  deceased's  relation  or  non-relation  to 
the  defendant  is  immaterial  as  it  is  liable  in  any  event,  whether 
the  deceased  was  its  servant  or  that  of  the  construction  company 
or  was  a  passenger,  and,  hence,  that  the  cause  of  action  is  single 
and  the  same,  but  is  stated  in  different  forms  in  the  three  counts 
to  meet  any  phase  of  the  proofs,  and,  therefore,  the  plaintiff 
cannot  be  compelled  to  elect,  and  a  general  verdict  for  the  plain- 
tiff is  good. 

It  is  as  true  today  as  it  ever  was  that  repugnancy  in  pleading 
is  not  permissible.  But  to  render  a  pleading  bad  the  repugnancy 
must  be  such  that  proof  of  one  state  of  facts  pleaded  as  a  basis 
for  a  recovery  will  necessarily  disprove  another  state  of  facts 
pleaded  as  such  a  basis.  A  plaintiff'  may  plead  a  single  cause 
of  action  in  as  many  different  counts  as  he  chooses,  to  meet  any 
possible  state  of  the  proofs,  and  this  will  not  make  his  counts 
repugnant.  (Brownell  v.  R.  R.  Co.,  47  Mo.  239;  Brinkman  v. 
Hunter,  73  Mo.  172;  St.  Louis  Gas  Light  Co.  v.  St.  Louis,  86 
Mo.  495;  Lancaster  v.  Insurance  Co.,  92  Mo.  460.)  If  any  one 
of  the  counts  in  a  petition  so  framed  is  good,  it  will  support  a 
general  verdict.  (Idem.)  This  being  true,  a  plaintiff  cannot 
be  compelled  to  elect  upon  which  count  he  will  stand. 


560  THE   COMPLAINT.  [ChAP.  III. 

In  the  ease  at  bar,  the  cause  of  action  is  single.  It  is  not 
material  whether  the  deceased  was  a  servant  of  the  defendant, 
or  of  the  construction  company,  or  a  passenger,  for  his  widow's 
right  to  recover  is  not  impaired  in  either  case,  under  the  laws 
of  this  state  as  they  now  and  were  December  23,  1897,  when 
the  accident  occurred,  (Powell  v.  Sherwood,  162  Mo.  605.) 
There  was  no  error  in  overruling  the  motion  to  elect.     *     *     * 

Judgment  affirmed.^ 


KOEPKE  V.  WINTERFIELD. 

116  Wis.  44.     [1903.] 

This  is  an  appeal  from  an  order  overruling  a  demurrer  to  the 
complaint  alleging  two  causes  of  action.  The  first  cause  of 
acton  is  to  the  effect  that  in  consideration  of  the  conveyance  of 
a  house  and  lot,  described,  to  the  defendant  (with  an  encum- 
brance thereon),  of  the  value  of  $800,  the  defendant  executed, 
acknowledged  and  delivered  to  the  plaintiff  a  warranty  deed, 
with  full  covenants,  of  160  acres  of  land  described,  Jan.  15, 
1901;  that  the  land  was  at  the  time  wild  and  unoccupied,  and 
the  defendant  was  not  and  never  had  been  in  the  actual  or 
constructive  possession  thereof,  and  had  no  title  nor  interest  in 
or  to  the  same  or  any  part  thereof,  but  that  at  the  time  of  the 
execution  and  delivery  of  such  deed  the  title  and  possession  of 
the  land  and  every  part  thereof  were  vested,  held  and  owned  by 
other  parties,  as  therein  alleged,  and  that  the  defendant  had  full 
knowledge  of  the  existence  of  such  outstanding  title  and  pos- 
session at  the  time  he  so  in  form  conveyed  to  the  plaintiff;  that, 
by  reason  of  the  facts  stated,  the  plaintiff  had  suffered  damage 
in  the  sum  of  $800,  for  which  amount,  with  interest  from  Janu- 
ary 15,  1901,  judgment  is  demanded.  The  second  cause  of  action 
alleged  is  to  the  effect  that  the  defendant  obtained  from  the 
plaintiff  the  deed  of  the  house  and  lot  mentioned  by  falsely  and 
fraudulently  representing  to  the  plaintiff  that  he  was  the  owner 
of,  and  had  the  title  in  free  simple  to,  the  160  acres  of  land 


♦Compare  Drolshagen  v.  Union  Depot  Co.,  186  Mo.  258. 


Sec.  3.]  koepke  v.  winterfield.  561 

described,  that  the  same  was  of  the  value  of  $800,  when  in  fact 
its  value  did  not  exceed  $150,  and  that  the  same  was  free  and 
clear  from  all  encumbrances;  that  the  plaintiff,  relj'ing  upon 
and  believing  such  representations  to  be  true,  conveyed  the 
house  and  lot  to  the  defendant,  and  received  in  exchange  the 
said  warranty  deed  of  the  160  acres  mentioned;  that  the  de- 
fendant was  not  at  the  time  the  owner  in  free  simple  of  the  160 
acres  of  land,  and  had  no  title  to  or  interest  therein,  but  that 
the  title  thereof  was,  Jan.  15,  1901,  in  the  parties  named  in  the 
other  cause  of  action,  and  had  been  for  more  than  two  years; 
and  further  reiterates  the  allegations  contained  in  the  first  cause 
of  action,  and  alleges  damage  to  the  plaintiff  in  the  sum  of  $800, 
and  prays  judgment  for  that  amount,  with  interest  from  Jan. 
15,  1901.  The  demurrer  to  the  complaint  is  based  upon  the  fol- 
lowing grounds:  (1)  That  several  causes  of  action  have  been 
improperly  united;  (2)  that  the  first  cause  of  action  alleged 
does  not  state  facts  sufficent  to  constitute  a  cause  of  action;  (3) 
that  the  second  cause  of  action  stated  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action;  (4)  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

Cassoday,  C.  J.  (after  stating  the  facts  and  holding  that  the 
first  count  stated  a  good  cause  of  action  for  breach  of  covenant, 
and  the  second  count  a  good  cause  of  action  for  fraud  and  de- 
ceit, says)  :     4.     The  remaining  question 

is  whether  the  two  causes  of  action  are  improperly  united.  The 
statute  declares  that  "the  plaintiff  may  unite  in  the  same  com- 
plaint several  causes  of  action,  whether  they  be  such  as  were 
formerly  denominated  legal  or  equitable,  or  both,  where  they 
arise  out  of  (1)  the  same  transaction  or  transactions  connected 
with  the  same  subject  of  action."  Section  2647,  Rev.  Sts.  1898. 
It  is  very  clear  that  the  two  causes  of  action  both  arose  out  of 
the  same  transaction, — the  exchange  of  the  house  and  lot  for 
the  wild  and  unoccupied  land.  The  case  comes  within  the  prin- 
ciples of  the  recent  rulings  of  this  court,  wherein  it  was,  in 
effect,  held  that  * '  a  cause  of  action  for  the  wrongful  withholding 
of  leased  premises  after  a  notice  to  quit,  *  *  *  and  a  cause 
of  action  for  the  wrongful  conversion  of  personal  property  in- 
cluded in  the  same  lease,  by  failure  to  deliver  it  to  the  lessor  as 
therein  provided,  may  be  joined,  *  *  *  since  they  'arise 
out  of  the  same  transaction  or  transactions,  connected  with  the 
same  subject  of  action.'  "  Elevator  Co.  v.  Wells,  93  Wis.  5,  (66 
36 


562  THE   COMPLAINT.  [ClIAl'.  ill. 

N.  W.  796),  as  explained  in  State  v.  Helms,  101,  Wis.  280,  283, 
284,  (77  N.  W.  194)  ;  Endress  v.  Shove,  110  Wis.  133,  139,  (85 
N.  W.  653).  We  must  hold  that  the  two  causes  of  action  were 
properly  united.* 

The  order  of  the  circuit  court  is  alBrmed. 


GERTLER  v.  IJNSCOTT. 
26  Minn.  82.     [187 9.] 

GiLFiLLAN,  C.  J.:  The  complaint  sets  forth  two  causes  of 
action.  The  first  is  upon  a  contract  between  the  plaintiff  and 
the  defendant,  providin-?  for  and  resulatinp:  the  separate  enjoy- 
ment by  each  of  them,  at  alternate  periods,  of  a  mill,  of  which 
they  were  tenants  in  common,  and  also  providing  for  the  payment, 
by  each,  of  an  agreed  part  of  the  expenses  in  keeping  the  mill  in 
a  suitable  condition  for  business.  The  second  cause  of  action 
is  in  form  for  a  tort,  in  wrongfully  drawing  off  and  diverting 
water  from  a  stream  and  pond  on  which  the  "mills"  which 
plaintiff  and  defendant  were  running  and  using  were  situated. 
To  the  complaint  there  is  a  demurrer,  on  the  ground  that  several 
causes  of  action,  to-wit,  one  upon  contract,  and  one  for  tort, 
are  improperly  united. 

There  is  no  doubt  that  the  two  causes  of  action  in  this  com- 
plaint cannot  be  united,  unless  within  the  first  class  specified  in 
Gen.  Sts.  c.  66,  §98;  that  is,  unless  they  are  included  in  "the 
same  transaction,  or  transactions  connected  with  the  same  sub- 
ject of  action."  As  a  general  rule  a  cause  of  action  upon  con- 
tract cannot  be  joined  to  one  for  tort ;  and  where  they  are  joined, 
the  joinder  is  improper  unless  it  appear  from  the  complaint 
that  they  come  within  the  first  class  in  that  section,  and  so  are 
excepted  from  the  general  rule.  The  phrase  in  the  statute,  "the 
same  transaction,  or  transactions  connected  with  the  same  sub- 

*  Accord:    Spangler  v.  Kite,  47  Mo.  App.  230. 

Contra:  Seymour  v.  Lorillard,  8  Civ.  Pro.  90;  see  also.  Bank  v. 
Grace,  18  N.  Y.  S.  745. 

In  Jamison  v.  Copher,  35  Mo,  483,  it  was  said  ttiat  a  count  for 
fraud  and  deceit  in  the  sale  of  a  note  could  not  be  joined  with  one 
based  on  the  defendant's  liability  as  indorser,  but  the  question  of  both 
causes  of  action  arising  out  of  the  same  transaction  was  not  discussed. 


Sec.  3.]  gertler  v.  linscott.  563 

ject  of  action,"  is  very  indefinite,  and  it  is  difficult  to  define 
satisfactorily  the  causes  intended  to  be  covered  by  it.  But  it  is 
evident  that  where  a  cause  of  action  of  one  class  is  stated,  the 
statement  of  another  cause  of  action  belonging  to  another  class 
must  show  that  they  are  parts  of  the  same  single  transaction, 
or  of  a  series  of  transactions  all  connected  together,  not  inde- 
pendent of  each  other,  and  all  connected  with  the  same  subject 
of  action.  The  complaint  in  this  case  does  not  meet  this  re- 
quirement. 

The  facts  stated  in  a  first  cause  of  action  will  not  help  the 
.statement  of  a  second,  except  so  far  as  the  statement  of  them  in 
the  first  is  referred  to  in,  and  made  by  such  reference  a  part  of, 
the  statement  of  facts  in  the  second.  In  this  ease  neither  cause 
of  action  refers  to  the  facts  stated  in  the  other.  We  might  con- 
jecture that  the  "mills"  mentioned  in  the  second  are  the  same 
as  the  mill  or  mills  mentioned  in  the  first.  That  is  as  far  as 
we  could  get  towards  finding  a  connection  between  the  two  causes 
of  action,  even  if  it  were  permitted  to  indulge  in  conjecture, 
and  that  would  be  far  from  enough  to  justify  the  two  causes  in 
one  action.    The  demurrer  was  well  taken. 

Order  reversed. 


WILES  V.  SUYDAM. 

6i  N.  Y.  173.     [1876.] 

Church,  Ch,  J. :  The  ground  of  denuirrer  relied  upon  is 
that  several  causes  of  action  are  improperly  united.  The  com- 
plaint contains  but  one  count  composed  of  a  series  of  allega- 
tions, and  was  doubtless  framed  upon  the  theory  that  there  is 
but  one  cause  of  action  contained.  If,  however,  the  complaint 
does  contain  several  causes  of  action,  and  they  are  improperly 
united,  the  omission  to  state  the  causes  of  action  in  separate 
counts  properly  numbered  does  not  deprive  the  defendant  of 
the  right  to  demur.  (Goldberg  v.  Utley,  60  X.  Y.  427.)  The 
complaint  alleges  an  indebtedness  against  the  Imperishable  Stone 
Block  Pavement  Company  of  New  York  City,  which  had  been 
prosecuted  to  judgment  and  execution ;  that  the  defendant  was 
a  "stockholder  to  the  amount  of  $50,000,"  but  had  not  paid  for 
the  same,  and  that  no  certificate  had  been  made  and  recorded 
that  the  capital  was  paid  in.     Section  10  of  the  act  authorizing 


564  THE   COMPLAINT.  [ClIAP.  III. 

the  formation  of  corporatioiLS  for  manufacturing  and  other  pur- 
poses declares  that  until  such  certificate  is  recorded  the  stock- 
holders shall  be  liable  for  the  debts  of  the  company  to  the 
amount  of  their  stock  respectively.  The  complaint  also  alleges 
that  the  time  the  debt  was  contracted  and  ever  since,  the  de- 
fendant was  a  trustee  of  the  corporation,  and  that  no  report  was 
filed  on  the  1st  day  of  January,  1873,  nor  at  any  time  since, 
and  for  this  neglect  the  twelfth  section  of  the  act  aforesaid  de- 
clares that  the  trustees  shall  be  liable  for  all  the  debts  of  the 
corporation  then  existing,  or  which  may  be  thereafter  created, 
until  such  report  is  filed. 

It  is  insisted  by  the  counsel  for  the  plaintiff  that  this  consti- 
tutes but  one  cause  of  action,  and  he  argues  that  the  cause  of 
action  is  to  recover  the  debt  upon  two  grounds  of  personal  lia- 
bility created  by  statute.     I  am  unable  to  concur  in  this  view. 
The  recovery  of  the  debt  is  the  object  of  the  action,  but  a  cause 
of  action  must  have  two  factors,  the  right  of  the  plaintiff  and 
the  wrong  or  obligation  of  the  defendant.    These  must  concur  to 
give  a  cause  of  action.     The  cause  of  action  against  the  de- 
fendant as  a  stockholder,  consists  of  the  debt  and  the  liability 
created  by  statute  against  stockholders  when  the  stock  has  not 
been  paid  in  and  a  certificate  of  that  fact  recorded.     In  effect 
the  statute  in  such  a  case  withdraws  the  protection  of  the  cor- 
poration from  the  stockholders,  and  regards  them  liable  to  the 
extent  of  the  amount  ot  their  stock  as  co-partners.    (Corning  v. 
McCullough,  1  N.  Y.  47.)     The  allegations  in  the  complaint  are 
sufficient  to  establish  a  perfect  cause  of  action  against  the  de- 
fendant as  a  stockholder  primarily  liable  for  the  debts  to  the 
amount  of  his  stock.     The  allegations  against  the  defendant  as 
trustee  also  constitute  a  distinct  and  perfect  cause  of  action, 
but  of  an  entirely  different  character.     Here  the  liability  is 
created  by  statute  and  is  in  the  nature  of  a  penalty  imposed  for 
neglect  of  a  duty  in  not  filing  a  report  showing  the  situation 
of  the  company.     The  object  of  the  action  is  the  same,  viz.,  the 
collection  of  the  debt;  but  the  liability  and  the  grounds  of  it 
are  entirely  distinct  and  unlike.     That  there  are  two  causes  of 
action  in  this  complaint  seems  too  clear  to  require  much  argu- 
ment.     The  more   difficult   question   is,   whether  they   may  be 
united  in  the  same  complaint.    The  first  cause  of  action  against 
the  defendant  as  a  stockholder  is  an  action  on  contract.    The  six 
years'  statute  of  limitations  applies.  (1  N.  Y.  supra.)     The  de- 


Sec.  3.]  wiles  v.  suydam.  565 

fendant  is  entitled  to  contribution.  (3  Hill,  188.)  But  m 
respect  to  the  action  against  defendant  as  trustee,  this  court  held 
in  Merchants'  Bank  v.  Bliss  (35  N.  Y.  412),  that  the  three  years' 
statute  of  limitations  applied  under  the  following  provision  of 
the  code :  "An  action  upon  a  statute  for  a  penalty  or  forfeiture 
when  the  action  is  given  to  the  party  aggrieved."  (§92.) 

With  this  decision  before  us,  which  we  do  not  feel  at  liberty 
to  overrule,  this  cause  of  action  must  be  regarded  as  an  action 
upon  a  statute  for  a  penalty  or  forfeiture.  The  liability  is  far 
more  extensive  than  that  of  the  stockholder;  it  is  for  all  debts, 
while  the  former  is  limited  to  the  amount  of  the  stock.  The  de- 
fendant would  not  be  entitled  to  contribution  except  by  statute 
(Laws  of  1871,  p.  1435),  and  contributions  would  be  from  dif- 
ferent persons  than  in  the  other  case.  It  is  claimed  also  that 
execution  against  the  person  might  issue  and  this  would  seem 
to  follow  from  the  decision  in  12  New  York  (supra)  but  we  do 
not  deem  it  necessary  to  pass  upon  that  question.  If  these  ac- 
tions may  be  united  it  must  be  by  virtue  of  the  first  subdivision 
of  section  167  of  the  code.  From  the  nature  of  the  two  actions 
they  do  not  come  under  either  of  the  other  subdivisions.  The 
first  subdivision  reads  as  follows:  "The  plaintiff  may  unite  in 
the  same  complaint  several  causes  of  action  whether  they  be 
such  as  have  been  heretofore  denominated  legal  or  equitable,  or 
both,  when  they  all  arise  out  of :  1st.  The  same  transaction  or 
transactions  connected  with  the  same  subject  of  action."  This 
language  is  very  general  and  very  indefinite.  I  have  examined 
the  various  authorities  upon  this  clause,  and  I  am  satisfied  that 
it  is  impracticable  to  lay  down  a  general  rule  which  will  serve 
as  an  accurate  guide  for  future^  cases.  It  is  safer  for  courts  to 
pass  upon  the  question  as  each  case  is  presented.  To  invent  a 
rule  for  determining  what  the  "same  transaction"  means,  and 
when  a  cause  of  acton  shall  be  deemed  to  "arise  out  of  it,"  and 
what  the  same  "subject  of  action  means,"  and  when  transac- 
tions are  to  be  deemed  connected  with  it,  has  taxed  the  ingenu- 
ity of  many  learned  judges,  and  I  do  not  deem  it  necessary  to 
make  the  effort  to  find  a  solution  to  these  questions.  An  in- 
teresting chapter  on  this  clause  is  contained  in  a  recent  work 
by  John  M.  Pomeroy,  on  "Remedies  and  Remedial  Rights"  (p. 
496),  which  contains  a  review  of  all  the  authorities,  and  a  criti- 
cal analysis  of  the  language  with  definitions  and  suggestions 
which  will  be  useful  in  determining  particular  cases.     Judge 


566  THE    COMPLAINT.  [ChAP.  III. 

Comstock  says  of  this  clause:  "Its  language  is  I  think  well 
chosen  for  the  purpose  intended,  because  it  is  so  obscure  and 
so  general  as  to  justify  the  interpretation  which  shall  be  found 
most  convenient  and  best  calculated  to  promote  the  ends  of 
justice."  (17  N.  Y.  592.)  There  is  certainly  ample  scope  for 
construction,  but  it  is  sometimes  difficult  to  determine  what  in- 
terpretation will  best  promote  the  ends  of  justice.  It  is  prob- 
able that  the  primary  purpose  of  this  provision  was  intended  to 
apply  to  equitable  actions,  which  frequently  embrace  many  com- 
plicated acts  and  transactions  relating  to  the  subject  matter  of 
the  action,  which  it  would  be  desirable  to  settle  in  a  single  con- 
troversy. The  clause  was  not  intended  to  overturn  all  distinc- 
tions in  actions  and  rules  of  pleading,  and  this  court  has  held 
that  an  action  of  trespass,  in  breaking  into  a  house  and  opening 
a  trunk,  could  not  be  joined  with  an  action  on  a  covenant  in  a 
lease  for  quiet  enjoyment,  although  the  act  which  rendered  the 
defendant  liable  in  both  actions  was  the  same.  (56  N.  Y.  332.) 
In  this  case  it  is  attempted  to  unite  an  action  on  a  statute  for  a 
penalty  with  an  action  on  contract.  The  nature  of  the  two 
actions  are  essentially  different,  although  the  object  to  be  at- 
tained is  the  same.  The  facts  to  establish  the  liability  are  en- 
tirely unlike.  The  measure  of  liability  is  different ;  the  defenses 
are  different.  The  rights  of  the  defendant  may  be  seriously 
prejudiced.  Suppose  a  general  verdict  is  obtained,  from  whom 
would  the  defendant  seek  contribution,  from  his  co-trustees  or 
from  his  co-stockholders?  Can  it  be  said  that  these  causes  of 
action  arose  out  of  the  same  transaction?  If  so,  what  was  the 
transaction?  Was  it  the  formation  of  the  company?  That 
created  no  liability  nor  cause  of  action.  Was  it  the  debt  of  the 
plaintiff?  That  created  no  liability  against  the  trustees,  nor 
does  such  liability  arise  out  of  it.  Was  it  the  failure  to  file  a 
certificate  that  the  stock  was  not  paid  in  ?  If  so,  there  is  no  con- 
nection between  that  and  the  transaction  which  created  the 
liability  against  the  defendant  as  trustee.  An  omission  to  record 
a  certificate  that  the  stock  was  paid  is  not,  in  any  sense,  the  same 
transaction  as  the  neglect  of  trustees  to  file  a  report  of  the  finan- 
cial condition  of  the  company.  Without  attempting  to  define 
the  terms  of  the  last  clause,  I  do  not  think  that  there  is  any 
such  connection  between  the  transactions,  out  of  which  the  causes 
of  action  arose  in  this  case,  and  the  "subject  of  action"  as  to 
justify  uniting  of  the  two  causes  of  action. 


Sec.  3.]  wiles  v.  suydam.  567 

The  causes  of  action  are  independent  of  each  other;  the 
"transactions"  are  different,  and  there  is  no  legal  affinity  be- 
tween them.  The  language  of  the  last  clause  is  more  applicable 
to  equitable  actions  where  the  controversy  is  in  respect  to  specific 
property,  real  or  personal.  It  is  difficult  to  define  in  this  case 
the  "subject  of  action."  The  object  of  the  action  is  to  recover 
the  debt ;  but  is  the  debt  the  subject  of  action  ?  In  some  sense 
it,  perhaps,  may  be  so  regarded ;  while  in  another  the  subject  of 
action  may  be  regarded  the  penalty  or  forfeiture.  If  the  former, 
there  is  no  natural  connection  between  it  and  the  transaction 
creating  the  liability.  If  the  latter,  it  has  no  connection  with 
the  transaction  against  the  defendant  as  a  stockholder.  The 
language  of  the  last  clause,  it  seems  to  me,  has  no  application  to 
this  case,  and  I  am  confident  it  was  never  intended  by  it  to  force 
a  connection  between  such  distinct  and  independent  things.  It 
may  be  convenient  for  the  plaintiff  to  combine  the  two  causes 
of  action,  but,  looking  at  the  rights  of  both  parties  and  the  rules 
of  law,  we  cannot  think  that  the  code  was  designed  to  authorize 
their  union  in  one  complaint. 

The  judgment  must  be  reversed  and  the  demurrer  sustained, 
with  leave  to  the  plaintiff  to  amend  within  the  usual  time. 

Judgment  accordingly. 


CRAFT   REFRIGERATING   CO.   v.    QUINNIPIAC   BREW- 
ING CO. 

63  Conn.  551.     [1893.] 

Action  by  the  Craft  Refrigerating  Machine  Company  against 
the  Quinnipiac  Brewing  Company  to  recover  damages  for  a 
breach  of  contract  of  sale  of  refrigerating  machines  by  plaintiff 
to  the  defendant,  and  for  a  conversion  of  such  machines.  From 
a  judgment  of  non-suit,  plaintiff  appeals. 

The  complaint  alleged,  in  substance,  that  plaintiff  sold  and 
delivered  to  defendant  two  refrigerating  machines  at  a  certain 
agreed  price ;  that  the  latter  claimed  the  machines  did  not  com- 
ply with  the  contract,  and  directed  plaintiff  to  remove  them: 
that  plaintiff  agreed  to  take  them  back,  and  sent  for  them ;  and 
that  defendant  forcibly  prevented  it  from  taking  the  machines, 


568  THE    COMPLAINT.  [ClI.VP.  111. 

and  continued  to  use  them  as  its  own  property,  and  tht'rul)y  con- 
verted them.  *  *  *  *  i-he  court  required  plaintiff  to  elect 
OH  Avhieh  cause  of  action  it  would  proceed,  on  the  ground  that 
the  two  causes  of  action, — one  on  contract,  and  the  other  sound- 
ing in  tort, — could  not  be  stated  in  a  single  count.  Plaint  ill' 
refused  to  make  such  election,  and  a  judgment  of  non-suit  was 
entered. 

Baldwin,  J.  Complaints,  under  the  practice  act,  are  to  "con- 
tain a  statement  of  the  facts  constituting  the  cause  of  action." 
Gen.  St.  §872.  This  is  to  be  "a  plain  and  concise  statement  of 
the  material  facts  on  which  the  pleader  relies."  Id.  §  880.  "Acts 
and  contracts  may  be  stated  according  to  their  legal  effect." 
(Practice  Book,  p.  14,  rule  3,  §  1),  and  "the  plaintiff  may  claim 
alternative  relief,  based  upon  an  alternative  construction  of  his 
cause  of  action."  (Id.  p.  13,  rule  2,  §9).  Several  causes  of 
action  may  be  united  in  the  same  complaint  if  all  are  "upon 
claims,  whether  in  contract  or  tort,  or  both,  arising  out  of  the 
same  transaction  or  transactions  connected  with  the  same  sub- 
ject of  action;  but  they  must  be  separately  stated,"  and  '*if 
it  appear  to  the  court  that  they  cannot  all  be  conveniently  heard 
together,  the  court  may  order  separate  trials  of  any  such  causes 
of  action,  or  may  direct  that  any  one  or  more  of  them  be  ex- 
punged from  the  complaint."  Gen.  St.  §878.  "Transactions 
connected  with  the  same  subject  of  action  may  include  any 
transactions  which  grow  out  of  the  subject  matter  in  regard  to 
which  the  controversy  has  arisen;  as,  for  instance,  the  failure 
of  a  bailee  to  use  the  goods  bailed  for  the  purpose  agreed,  and 
also  an  injury  to  them  by  his  fault  and  neglect."  Practice 
Book,  p.  15,  rule  3,  §  7.  Where  separate  and  distinct  causes  of 
action  (as  distingushed  from  separate  and  distinct  claims  for 
relief,  founded  on  the  same  cause  of  action  or  transaction)  are 
joined,  "the  complaint  is  to  be  divided  into  separate  counts." 
Id.  p.  12,  rule  2,  §  4.  Any  exception  for  misjoinder  of  causes 
of  action,  whether  in  the  same  or  separate  counts,  must  be  taken 
by  demurrer,  and,  if  not  so  taken,  will  be  deemed  to  be  waived. 
Id.  p.  17,  rvTle  4,  §  13.  These  various  statutory  provisions  and 
rules  of  court  are  all  designed  to  enable  the  plaintiff  to  state 
his  grievance  to  the  court,  untrammeled  by  artificial  forms  of 
pleading,  and  regardless  of  most  of  the  ancient  distinctions  of 
procedure  as  to  law  and  equity  or  contract  and  tort.  There  is 
no  attempt  to  bring  the  parties  to  issue  upon  some  "single,  cer- 


Sec.  3.]  ceaft  ref.  co.  v.  brewing  co.  569 

tain  and  material  point."  Each  paragraph  of  the  complaint  is 
to  contain  "as  nearly  as  may  be  a  separate  allegation"  (Gen. 
St.  §880)  and  it  is  declared  thatj  "the  denial  of  any  material 
allegation  shall  constitute  an  issue  of  fact"  (Practice  Book,  p. 
17,  rule  4,  §  12).  If,  in  any  case,  so  many  of  these  issues  are 
formed  that  the  court  fears  the  jury  cannot  dispose  of  them  all 
at  one  hearing,  it  "may  order  that  one  or  more  of  the  issues 
joined  be  tried  before  the  others."  Gen.  St.  §  1032.  And,  if 
the  issues  made  up  by  the  parties  are  indcfinte  or  indecisive, 
the  court  may  direct  them  "to  prepare  other  issues,  and  such 
issues  shall,  if  the  parties  differ,  be  settled  by  the  court."  Id. 
§880. 

The  plaintiff's  complaint  sets  forth  two  causes  of  action,  stat- 
ing them  in  separate  paragraphs,  but  not  in  separate  counts. 
One  cause  of  action  is  for  the  breach  of  a  contract  to  take,  and 
pay  for,  two  refrigerating  machines,  at  an  agreed  price.  The 
other  cause  of  action  is  for  a  conversion  of  the  machines.  It 
was  proper  to  join  these  different  causes  of  action  in  one  com- 
plaint, either  if  both  arose  out  of  the  same  transaction,  or  if, 
while  one  arose  out  of  one  transaction,  and  the  other  out  of 
another,  both  these  transactions  were  "connected  with  the  same 
subject  of  action."  A  transaction  is  something  which  has  been 
transacted,  that  is,  acted  out  to  the  end.  This  notion  of  com- 
pleted action  strongly  characterizes  the  word  in  the  Latin 
language,  from  which,  through  the  Normans,  we  have  derived  it, 
although  we  gain  little  assistance  otherwise  from  these  sources 
in  determining  its  meaning,  since  both  the  Romans  and  the 
French  have  used  it  mainly  as  a  juridical  term  in  signifying  an 
agreement  of  parties  in  the  settlement  of  differences.  Dig.  II, 
15,  "De  Transactionibus";  Civil  Code  of  France,  art.  2044.  As 
the  word  is  employed  in  the  American  codes  of  pleading  and 
in  our  own  practice  act,  a  "transaction"  is  something  which 
has  taken  place,  whereby  a  cause  of  action  ha.s  arisen.  It  must 
thesefore  consist  of  an  act  or  agreement,  or  several  acts  or  agree- 
ments having  some  connection  with  each  other,  in  which  more 
than  one  person  is  concerned,  and  by  which  the  legal  relations 
of  such  persons  between  themselves  are  altered.  The  transaction 
between  the  parties  to  the  present  action  began  when  they  made 
the  contract  for  the  manufacture  and  sale  of  the  two  machines. 
Then  followed  the  delivery  of  the  machines,  the  refusal  to  ac- 
cept them,  the  attempt  of  the  plaintiff  to  retake  them,  the  forci- 


570  THE   COMPLAINT.  [Ch.VP.  III. 

ble  prevention  of  their  removal,  and  the  subsequent  continuance 
of  their  use  in  the  defendant's  business.     Without  taking  each 
and  all  of  these  events  into  consideration,  the  legal  relations  of 
the  parties  could  not  be  fully  determined.     From  the  delivery 
of  the  machines  to  the  conunencement  of  the  action,  they  had 
remained  continuously  in  the  defendant's  possession.     It  had 
simply  dealt  with  them  in  a  different  way  at  different  times. 
The  practice  act  is  to  be  "favorably  and  liberally  construed  as 
a  remedial  statute."    Practice  Book  p.  21,  rule  9,  §4.     It  has 
taken  the  word  "transaction,"  not  out  of  any  legal  vocabulary 
of  technical  terms,  but  from  the  common  speech  of  men.    So  far 
as  we  are  aware,  it  has  never  been  the  subject  of  any  exact  judi- 
cial definition.    It  is  therefore  to  be  construed  as  men  commonly 
understand  it,  when  applied,  as  in  our  practice  act  it  certainly 
is  applied  (Gen  St.  §878),  to  any  dealings  between  the  parties 
resulting  in  wrongs,  without  regard  to  whether  the  wrong  be 
dune  by  violence,  neglect,  or  breach  of  contract.     It  seems  to  us 
hardly  to  be  doubted  that  any  ordinary  man  would  consider 
everything  stated  in  the  complaint  as  properly  belonging  to  a 
narrative   of  the   whole  transaction  between   the   parties,   and 
necessary  for  the  information  of  one  who  was  to  form  a  judg- 
ment  as  to  their  respective   rights.     That  a  broader  meaning 
should  be  given  to  the  term  "transaction"  than  it  has  received 
in  some  of  the  courts  of  our  sister  states  is  plain  from  the  pro- 
vision in  the  Practice  Book   (p.  13,  rule  2,  §7)   that  "where 
several  torts  are  committed  simultaneously  against  the  plaintiff 
(as  a  battery  accompanied  by  slanderous  words)  they  may  be 
joined  as  causes  of  action  arising  out  of  the  same  transaction, 
notwithstanding  they  may  belong  to  different  classes  of  actions. ' ' 
This  was  the  deliberate  adoption  of  a  view  of  the  meaning  of 
the  w^ord  in  question  which  had  been  previously  disapproved  in 
New  York,  as  well  as  by  Judge  Bliss,  in  his  treatise  on  Code 
Pleading  (section  125),  though  accepted  in  Kansas.    Anderson 
V.  Hill,  53  Barb.,  238,245 ;  Harris  v.  Avery,  5  Kan.,  146.    It  fol- 
lows that  both  causes  of  action  declared  on  were  properly  united 
in  one  complaint.     The  same  result  would  also  be  reached  if 
what  we  have  viewed  as  one  transaction  could  be  regarded  as 
consisting  of  several  transactions,  since  all  would  be  connected 
with  the  same  subject  of  action;  that  is,  the  two  machines,  and 
the  title  to  them.     *     *     * 

Judgment  affirmed  on  technical  grounds. 


gEC.  3.]  HARRIS  V.  AVERY.  571 


HARRIS  V.  AVERY. 
5  Kan.,  116.     [1869.] 

Valentine,  J.  This  action  was  brought  in  the  court  below 
by  Avery,  as  plaintiff.  The  petition  states  two  causes  of  action, 
—false  imprisonment  and  slander,— and  alleges  that  both  arose 
out  of  the  same  transaction.  Harris  demurred  to  this  petition, 
on  the  ground  "that  it  appears  on  the  face  of  the  petition  that 
several  causes  of  action  are  improperly  joined."  The  district 
court  overruled  the  demurrer,  and  this  ruling  is  assigned  as 
error.  The  petition  shows  that  the  two  causes  of  action  are 
founded  upon  the  following  facts:  Harris  met  Avery  in  the 
City  of  Fort  Scott,  and,  in  the  presence  of  several  other  persons, 
called  Avery  a  thief ;  said  he  had  a  stolen  horse ;  took  the  horse 
from  Avery,  and  kept  the  horse  for  four  or  five  days; 
arrested  Averj-,  and  confined  him  in  the  county  jail  with  felons 
four  or  five  days.  We  think  these  facts,  as  detailed  in  the  peti- 
tion, constitute  only  one  transaction  (Brewer  v.  Temple,  15  How. 
Pr.  286) ;  and  whether  they  constitute  more  than  one  cause  of 
action,  under  our  code  practice,  may  be  questionable.  Under  the 
authority  we  have  referred  to  they  would  not.  But  as  we  have 
not  been  asked  to  decide  the  latter  question,  we  will  pass  it 
over  and  treat  the  case  as  though  the  facts  stated  constitute  two 
causes  of  action. 

Section  89  of  the  Code  (Comp.  Laws,  138),  provides  "that 
the  plaintiff  may  unite  several  causes  of  action  in  the  same 
petition,  whether  they  be  such  as  have  heretofore  been  denom- 
inated legal  or  equitable,  or  both,  when  they  are  included  in 
either  one  of  the  following  classes :  First,  the  same  transaction 
or  transactions  connected  with  the  same  subject  of  action."  This 
differs  in  many  respects  from  the  common  law  rule.  At  com- 
mon law,  "where  the  same  form  of  action  may  be  adopted  for 
several  distinct  injuries,  the  plaintiff  may,  in  general,  proceed 
for  all  in  one  action,  though  the  several  rights  affected  were 
derived  from  different  titles,"  (1  Chit.  PI.  201;  Tidd,  Pr.  11) ; 
and  different  forms  of  action  may  be  united,  "where  the  same 
plea  may  be  pleaded  and  the  same  judgment  given  on  all  the 
counts  of  the  declaration,  or  whenever  the  counts  are  of  the 
same  nature,  and  the  same  judgment  is  to  be  given  on  them,  al- 
though the  pleas  be  different."    1  Chit.  PL  200. 


572  THE   COMPLAINT.  [ChaP.  111. 

In  the  action  at  bar,  if  Harris  had  arrested  Avery  on  a  war- 
rant, which  Harris  had  maliciously  and  without  probable  cause 
obtained  from  a  court  of  competent  jurisdiction,  and  had  also 
converted  the  horse  to  his  own  use,  then  at  common  law  Avery 
would  have  had  three  distinct  causes  of  action,  which  he  could 
unite  in  one  suit:  First,  an  action  for  the  false  imprisonment 
or  malicious  prosecution ;  second,  an  action  of  slander  for  the 
words  spoken ;  and,  third,  an  action  of  trover  for  the  conversion 
of  the  horse.  These  may  all  be  united  in  an  action  on  the  case, 
(1  Chit.  PI.  133,  134,  146;  1  Tidd,  Pr.  5)  trover  being  a  species 
of  case.  Avery  might,  also,  at  common  law  unite  with  these 
causes  of  action  as  many  other  causes  of  action  as  he  might 
have,  for  malicious  prosecution,  slander,  trover,  criminal  conver- 
sation, nuisance,  and  other  causes  of  action  which  may  be  sued 
in  an  action  on  the  case,  and  although  they  may  each  have  arisen 
out  of  a  di&erent  transaction,  and  at  a  different  time,  and  in  a 
different  place.  But  if  Harris  arrested  Avery  without  any 
process — which  was  the  fact  in  this  case — and  in  an  entirely 
irregular  manner,  then  the  two  causes  of  action  for  false  im- 
prisonment and  slander  could  not  at  common  law  be  united,  as 
the  first  would  have  to  be  sued  in  an  action  of  trespass  and  the 
second  in  an  action  on  the  case,  and  it  would  make  no  difference 
whether  they  both  arose  out  of  the  same  transaction  or  not. 
Our  code  has  abolished  all  the  common  law  forms  of  action,  and 
has  established  a  system  for  the  joinder  of  actions, — more  philo- 
sophical, and  complete  within  itself.  It  follows  the  rules  of  equity 
more  closely  than  it  does  those  of  the  common  law,  one  object 
seeming  to  be  to  avoid  the  multiplicity  of  suits,  and  to  settle 
in  one  action,  as  equity  did,  as  far  as  practicable,  the  whole 
subject  matter  of  a  controversy.  Hence,  the  common  law  on 
this  question  is  no  criterion.  It  is  probably  true  that  the  two 
causes  of  action  for  false  imprisonment  and  slander  cannot,  un- 
der our  code,  be  united,  unless  both  arise  out  of  the  same  trans- 
action, one  being  an  injury  to  the  person  and  the  other  being 
an  injury  to  the  character;  but  we  do  not  know  of  any  reason 
why  they  should  not  be  united  when  both  do  arise  out  of  the 
same  transaction.  It  is  claimed  by  counsel  for  the  plaintiff  in 
error  that  the  earlier  cases  under  the  New  York  Code  are  against 
this  view  of  the  case.  He  refers  to  Furniss  v.  Brown,  8  How. 
Pr.,  59,  73;  Hulse  v.  Thompson,  9  How.  Pr.,  113;  Jeroliman  v. 
Cohen,  1  Duer,  629.     We  think  it  questionable  whether  these 


SbC.  3.]  HARRIS  V,   AVERY.  573 

cases  sustain  the  counsel's  views;  but  if  they  do,  the  later  deci- 
sions under  the  same  code  are  squarely  against  him.  See  Brew- 
er V.  Temple,  15  How.  Pr.  286 ;  Robinson  v.  Flint,  16  How.  Pr. 
240.  In  the  latter  case  the  court,  as  we  think,  express  the  true 
rule.  They  say  "that  the  plaintiff  may  unite— First,  as  many 
legal  causes  of  action  as  he  pleases  arising  out  of  the  same 
transaction;  second,  as  many  equitable  causes  of  action  as  he 
pleases  arising  out  of  the  same  transaction ;  third,  as  many  legal 
and  equitable  causes  of  action  as  he  pleases  arising  out  of  the 
same  transaction ;  fourth,  as  many  causes  of  action  as  he  pleases 
arising  out  of  different  transactions  connected  with  the  subject 
of  the  action." 

The  order  of  the  district  court  overruling  the  demurrer  to  the 
petition  is  affirmed. 


DeWOLFE  v.  ABRAHAM. 

151  N.  Y.,  IS  6.     [1896.] 

Bartlett,  J.      The  plaintiff  sued  the  defendants,  merchants 
in  the  city  of  Brooklyn,  for  slander,  alleging  that,  at  their  place 
of  business,  and  in  the  presence  and  hearing  of  a  large  number "i^^v-^^ 
of  people,  the  defendants,  through  their  lawful  agents,  charged  o—  Ji^^^^o^ 
plaintiff'  with  theft,  in  that  she  had  stolen  from  them  a  certain  ._d.-o.Ji. ,  r^..^ 
ring.     The  plaintiff's  counsel  in  opening  the  case  to  the  jury,  <^.v^.^\, 
stated  that  the  alleged  slander  was  not  uttered  by  the  defend-   ^^j^^^j^^^^  ^ 
ants,  or  either  of  them,  but  by  a  clerk  or  salesman  in  their    ^^^^^  ^^^^^^^^^ 
employ,  that  plaintiff,  at  the  time  of  the  slander  was  falsely  . 
imprisoned  by  a  detective  of  defendant's;  and  that  the  plaintiff   ^^^  "Jf^^^ 
sought  to  recover  damages  for  the  false  imprisonment  and  for  p-w-cju  k^ 
slander.    Thereupon  the  counsel  for  defendants  moved,  upon  the  ^-M^ja^-.^X 
complaint  and  the  opening,  for  a  dismissal,  upon  the  ground  that   r\^<jCN>j»^>^ 
the  defendants  were  not  liable  for  the  slander  of  their  clerks,    ^j.^^^^^^  ..^^ 
and  that  the  complaint  was  solely  for  slander.    This  motion  was  ^^^^^^5;^  ^ 
denied,  and  the  plaintiff  was  allowed  to  withdraw  a  juror  for  y^^^^ 
the  purpose  of  applying  to  the  special  term  for  leave  to  amend  ^fV^^^^^^ 
her  complaint,  so  as  to  allege  a  cause  of  action  for  false  im-    ^^^^^^^^XS 
prisonment  against  the  defendants.     A  motion  was  accordingly 
made  at  special  term,  and  the  justice  presiding  held  that  the 
proposed  amended  complaint  contained  a  union  of  the  causes 


574  TUE    COMPLAINT.  [ChAP.  III. 

of  action  for  slander  and  false  imprisonment,  and  denied  the 
motion.  On  appeal,  the  appellate  division  reversed  the  order 
of  the  special  term,  and  allowed  the  amendment,  holding  that 
"injury  at  the  same  time  to  the  person  by  physical  violence  and 
to  the  character  by  the  language  may  well  be  regarded  as  parts 
of  a  single  tort."  The  question  of  law  is  certified  to  us, 
"whether,  under  all  the  circumstances  of  the  case,  the  plaintiff 
should  have  been  allowed  to  amend  her  complaint  for  slander  by 
adding  thereto  the  statement  of  a  cause  of  action  for  false 
imprisonment. ' ' 

We  are  unable  to  agree  with  the  conclusion,  reached  by  the 
learned  appellate  division,  that  injury  at  the  same  time  to  the 
person  by  physical  violence  and  to  the  character  by  language 
may  well  be  regarded  as  parts  of  a  single  tort.  We  think  to  so 
hold  is  to  ignore  a  distinction  that  exists  in  all  jurisdictions 
where  the  common  law  is  administered.  It  is  not  necessary, 
however,  to  examine  precedents,  as  the  code  of  civil  procedure 
(section  484)  is  decisive  of  this  appeal.  This  section  provides 
that  the  plaintiff  may  unite  in  the  same  complaint  two  or  more 
causes  of  action,  whether  they  are  such  as  were  formerly  denom- 
inated legal  or  equitable,  or  both,  where  they  are  brought  to 
recover  as  set  forth  in  nine  subdivisions.  The  second,  third  and 
ninth  are  the  only  ones  material  to  this  controversy.  They  read 
as  follows:  "(2)  For  personal  injuries,  except  libel,  slander, 
criminal  conversation  or  seduction.  (3)  For  libel  or  slander. 
*  *  *  (9)  Upon  claims  arising  out  of  the  same  transaction 
or  transactions  connected  with  the  same  subject  or  action  and 
not  included  within  one  of  the  foregoing  subdivisions  of  this 
section."  The  section  then  provides  generally  "that  it  must 
appear  upon  the  face  of  the  complaint  that  all  the  causes  of 
action  so  united  belong  to  one  of  the  foregoing  subdivisions  of 
this  section."  It  thus  appears  that  the  legislature  has  indicated 
with  great  clearness  and  particularity  the  causes  of  action  that 
may  be  united  in  the  same  complaint.  The  test  is  very  simple, 
as  all  causes  of  action  united  must  belong  to  the  same  subdivision 
of  the  section  we  are  considering.  False  imprisonment  is  an 
injury  to  the  person,  and  is  embraced  within  subdivision  2,  while 
slander  is  in  express  terms  excluded  therefrom,  and  placed  in 
subdivision  3.  The  plaintiff's  case  is  not  aided  by  subdivision  9 
of  the  section,  which  provides  for  uniting  causes  of  action  upon 
claims  arising  out  of  the  same  transaction.     It  does  not  follow 


Sec.  3.]  de  wolfe  v.  Abraham.  575 

that  two  causes  of  action,  originating  at  the  same  time,  arose,  as 
a  matter  of  law,  out  of  the  same  transaction,  or  are  proved  by  the 
same  evidence.  Anderson  v.  Hill,  53  Barb.,  245,  246.  In  the 
case  last  cited  the  general  term  of  the  supreme  court  held  that 
causes  of  action  for  assault  and  battery  and  slander  could  not 
be  united  in  the  same  complaint.  Mr.  Pomeroy,  in  his  work  on 
Code  Remedies  (section  474),  in  commenting  on  that  case,  says: 
"Two  events  happened  simultaneously,  the  beating  and  the 
defamation,  but  neither  was  a  'transaction,'  in  any  proper  sense 
of  the  word.  The  wrong  which  formed  a  part  of  one  transaction 
was  the  beating;  that  which  formed  a  part  of  the  other  was  the 
malicious  speaking.  The  plaintiff's  primary  rights  which  pre- 
viously existed  were  broken  by  two  independent  and  existing 
wrongs.  The  only  common  point  between  the  causes  of  action 
was  one  of  time,  but  this  unity  of  time  was  certainly  not  a 
'transaction.'  "  The  separate  and  distinct  nature  of  the  causes 
of  action  of  false  imprisonment  and  slander  are  apparent  when 
we  apply  the  test,  under  the  circumstances  of  the  case  at  bar, 
whether  the  same  evidence  would  prove  the  plaintiff's  case  in 
the  two  actions.  It  is  obvious  that  it  would  not.  In  the  action 
for  false  imprisonment,  plaintiff  must  show  an  unlawful  arrest 
and  detention.  In  the  action  for  slander,  the  proof  would  be 
the  uttering  of  the  slander  in  the  presence  of  others,  its  falsity, 
if  justified,  and  extrinsic  evidence  of  malice,  if  any  existed.  The 
measure  and  proof  of  damages  in  the  two  causes  of  action  would 
be  entirely  different.  The  order  appealed  from  should  be 
reversed,  with  costs,  the  order  of  the  special  term  should  be 
affirmed,  and  the  question  of  law  certified  to  us  is  answered  in 
the  negative.    All  concur.    Ordered  accordingly. 


CHAPTER  IV. 

THE  ANSWER. 

Code  Provisions: 

Answer;  what  to  contain. — The  answer  of  the  defendant  must 
contain :  1.  A  general  or  specific  denial  of  each  material  alle- 
gation of  the  complaint  controverted  by  the  defendant,  or  of 
any  knowledge  or  information  thereof  sufficient  to  form  a  belief. 
2.  A.  statement  of  any  new  matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise  language,  without  repeti- 
tion.—A^  Y.  Code,  Civ.  Free,  Sec.  500. 

Answer  shall  contain,  what. — The  answer  of  the  defendant 
shall  contain :  First,  a  general  or  specific  denial  of  each  material 
allegation  of  the  petition  controverted  by  the  defendant,  or  any 
knowledge  or  information  thereof  sufficient  to  form  a  belief ;  sec- 
ond, a  statement  of  any  new  matter  constituting  a  defense  or 
counter-claim,  in  ordinary  and  concise  language,  without  repeti- 
tion.—Mo.  R.  S.,  1899,  Sec.  604. 

Counter-claim  defined. — The  counter-claim,  specified  in  the  last 
section,  must  tend  in  some  way,  to  diminish  or  defeat  the  plain- 
tiff's recovery,  and  must  be  one  of  the  following  causes  of  action 
against  the  plaintiff,  or,  in  a  proper  case,  against  the  person 
whom  he  represents,  and  in  favor  of  the  defendant,  or  of  one  or 
more  defendants,  between  whom  and  the  plaintiff  a  separate 
judgment  may  be  had  in  the  action : 

1.  A  cause  of  action  arising  out  of  the  contract  or  trans- 
action, set  forth  in  the  complaint  as  the  foundation  of  the  plain- 
tiff's claim,  or  connected  with  the  subject  of  the  action. 

2.  In  an  action  on  contract,  any  other  cause  of  action  on  con- 
tract, existing  at  the  commencement  of  the  action. — N.  Y.  Code, 
Civ.  Proc,  Sec.  501. 

Counter-claim  must  arise  from  what. — The  counter-claim  men- 
tioned in  the  last  section  must  be  one  existing  in  favor  of  a 
defendant  and  against  a  plaintiff,  between  whom  a  several  judg- 
ment might  be  had  in  the  action,  and  arising  out  of  one  of  the 
following  causes  of  action :  First,  a  cause  of  action  arising  out 
of  the  contract  or  transaction  set  forth  in  the  petition  as  the 
foundation  of  the  plaintiff's  claim,  or  connected  with  the  sub- 

576 


Sec.  1.]  BOilBERGER    V.    TURNER.  577 

jeet  of  the  action ;  second,  in  an  action  arising  on  contract,  any 
other  cause  of  action  arising  also  on  contract,  and  existing  at  the 
commencement  of  the  action.  The  defendant  may  set  forth  by 
answer  as  many  defenses  and  counter-claims  as  he  maji  have, 
whether  they  be  such  as  have  been  heretofore  denominated  legal 
or  equitable,  or  both.  They  must  each  be  separately  stated,  in 
such  manner  that  they  may  be  intelligibly  distinguished,  and 
refer  to  the  cause  of  action  which  they  are  intended  to  answer. — 
Mo.  R.  S.,  1899,  sec.  605. 

Defendant  may  interpose  several  defenses  or  counter-claims ; 
rules  relating  thereto. 

A  defendant  may  set  forth  in  his  answer,  as  many  defenses  or 
counter-claims,  or  both,  as  he  has,  whether  they  are  such  as  were 
formerly  denominated  legal  or  equitable.  Each  defense  or 
counter-claim  must  be  separately  stated,  and  numbered.  Unless 
it  is  interposed  as  an  answer  to  the  entire  complaint,  it  must 
distinctly  refer  to  the  cause  of  action  which  it  is  intended  to 
answer. — N.  Y.  Code,  Civ.  Proc,  Sec.  507. 

When  defendants  shall  answer  jointly. — Two  or  more  defend- 
ants, making  the  same  defense,  shall  answer  jointly.  Different 
consistent  defenses  may  be  separately  stated  in  the  same  man- 
ner.—i/o.  R.  S.,  1899,  Sec.  606. 


Section  1.     General  and  Specific  Denials. 

BOMBERGER  v.  TURNER. 

13  Ohio  St.,  263.     [1862.] 

The  defendant  in  error  filed  his  petition,  in  said  superior 
court,  against  the  plaintiffs  in  error  and  one  William  M.  Seely, 
setting  forth  the  rendition  of  a  decree  in  Montgomery  common 
pleas,  in  1849,  against  said  Seely,  and  in  favor  of  said  Clyne 
for  Jfil, 191.05  and  costs  of  suit,  and  a  revival  of  that  decree  in 
18oF),  in  the  name  of  said  administrator;  that  Seely  has  no  prop- 
erty subject  to  \e\\,  but  that,  during  the  pendency  of  said  first 
suit,  he  was  the  owner  of  lot  No.  988,  in  the  city  of  Dayton,  and 
combined  with  one  George  W.  Bomberger,  his  attorney  and 
friend,  to  defraud  said  Clyne,  and  prevent  the  collection  of  his 
anticipated  judgment ;  that,  in  furtherance  of  such  combination, 
37 


578  THE  ANSWER.  [Chap.  IV. 

the  two  went  to  Troy,  jNIianii  county,  where  judgments,  wholly 
without  consideration,  were  confessed  by  said  Seely,  before  a 
justice  of  the  peace,  in  favor  of  said  Bomberger,  for  $297.75; 
that  executions  thereon  against  the  lands  of  said  Seely  were 
awarded  by  the  Miami  common  pleas,  upon  which  said  lot  No. 
988  was  sold  to  said  Bomberger,  who  purchased  the  same  under 
an  express  agreement  to  take  the  tfitle  and  hold  it  in  trust  for 
said  Seely;  that  Bomberger  died  long  after  said  sale,  but  with- 
out having  received  any  deed  for  said  lot ;  that,  in  1852,  a  deed 
was  made  to  the  plaintiffs  in  error,  as  his  heirs  at  law.  The  peti- 
tion asks  that  said  sale  and  conveyance  be  adjudged  fraudulent 
and  void  as  against  said  judgment,  and  that  the  lot  be  sold  to 
satisfy  the  same. 

Peck,  J.     *     *     * 

4.  It  is  insisted  that  the  court  also  erred  in  rendering  judg- 
ment for  plaintiff  below,  without  proof  that  Seely  had  no  prop- 
erty subject  to  le\T,  that  fact  having  been  put  in  issue,  it  is 
said,  by  the  pleadings. 

The  petition  avers,  that,  "the  said  Seely  has  no  property 
whereon  to  levy,"  while  the  answer  says  merely,  "these  defend- 
ants do  not  admit  that  said  Seely  has  no  property  on  which  to 
levy."  Here  certainly  is  no  denial  of  the  averment,  much  less 
any  affirmation  that  Scchj  had  such  property,  the  proper  way  to 
controvert  such  negative  averment.  Nor  is  there  any  reason 
stated  for  the  absence  of  such  affirmation  or  denial.  There  was 
then  no  such  controverting  of  the  averment,  as  put  the  plaintiff 
upon  proof  of  its  truth.  Code,  sec.  127.  A  mere  call  for  proof 
unaccompanied  by  a  denial,  would  not  have  imposed  such  obliga- 
tion upon  the  plaintiff.    Bentley  v.  Dorcas,  11  Ohio  St.  Rep.,  309. 

Judgment  reversed  on  other  grounds. 


WADLEIGH  V.  MARATHON  COUNTY  BANK. 

58  Wis.,  546.     [1883.] 

Lyon,  J.  1.  Did  the  circuit  court  err  in  denying  plaintiff's 
motion  for  judgment,  for  the  alleged  frivolousness  of  the  orig- 
inal answer?  If  the  answer  was  frivolous — that  is,  if  it  con- 
tained no  denial  of  any  material  allegation  of  the  complaint — 


Sec.  1.]  WADLEIGH  V.   MARATHON   CO.   BANK.  579 

the  motion  should  have  been  granted,  or,  at  least,  the  defendant 
should  have  been  required  to  make  a  better  answer.  Moreover, 
if  it  is  frivolous  the  amended  answer  does  not  deny,  and  there- 
fore admits  that  the  plaintiff  had  title  in  fee  to  the  land 
described  in  the  complaint,  down  to  the  time  when  the  tax  deed 
was  issued  to  Putman,  as  therein  alleged.  If  that  tax  deed  was 
successfully  impeached,  the  title  would  still  remain  in  the  plain- 
tiff, and  he  would  be  entitled  to  recover  in  this  action  for  the 
l(;gs  admitted  to  have  been  taken  from  such  land  by  the  defend- 
ant. The  point. made  against  the  original  answer  is  that  it  con- 
tains no  direct  denial,  but  only  an  averment  that  the  defendant 
says  it  denies,  etc.  This  form  of  denial  was  held  insufficient  by 
some  of  the  courts  of  New  York  during  the  early  years  of  the 
Code.  But  the  rulings  there  are  not  uniform.  In  Chapman  v. 
Chapman,  34  How.  Pr.,  281,  the  point  was  ruled  the  other  wa}'. 
This  is  the  latest  ruling  on  the  question  in  that  state,  to  which 
we  have  been  referred. 

This  case,  however,  does  not  require  us  to  choose  between  the 
conflicting  decisions  in  New  York.  It  is  not,  we  think,  a  fair 
construction  of  the  answer  to  hold  that  it  merely  states  that  the 
defendant  "says  it  denies,"  etc.  It  commenced  with  the  intro- 
ductory statement  that  the  defendant  comes  by  its  attorneys, 
"and  for  answer  to  the  complaint  of  the  plaintiff  alleges — ;" 
then  follows  a  direct  denial  in  another  sentence :  ' '  Upon  infor- 
mation and  belief  it  denies,"  etc.  The  signification  of  the  plead- 
ings would  not  be  changed  did  it  read,  "The  defendant  alleges 
as  follows,  to-wit :  Upon  information  and  belief  it  denies, ' '  etc. 
We  cannot  doubt  that  this  would  be  a  sufficient  denial. 

The  intention  of  the  pleader  to  deny  all  of  the  material  allega- 
tions of  the  complaint,  except  the  incorporation  of  the  defend- 
ant, is  very  manifest,  and  we  think  he  has  expressed  that  inten- 
tion in  the  answer.  The  statute  (Rev.  St.,  §2668)  requires  a 
liberal  construction  to  be  given  to  pleadings,  with  a  view  to 
substantial  justice  between  the  parties.  Another  statute  (sec. 
2829)  commands  us  to  disregard  defects  in  pleadings  which  do 
not  affect  the  substantial  rights  of  the  adverse  party.  Under 
these  statutes  it  must  be  held  that  the  original  answer  contains 
a  sufficient  general  denial  of  all  unadmitted  material  allegations 
of  the  complaint.  It  therefore  puts  in  issue  the  title  of  the 
plaintiff  to  the  lands  and  logs  in  controversy.     *     *     * 

Judgment  affirmed. 


580  THE  ANSWEK.  [ChAP.  IV. 

SHELDON  V.  MIDDLETON. 
10  Iowa,  17.     [1859.] 

The  plaintiff  sued  on  a  promissory  note  for  $185.00,  dated  1st 
September,  1857,  made  by  Middleton  to  "Mark  Weaver,"  pay- 
able one  day  after  date,  and  which  was  indorsed  in  express  terms 
to  the  plaintiffs.  The  defendant,  by  his  answer,  admits  the 
making  of  a  promissory  note  at  the  time  specified,  "similar  in 
tenor  to  the  copy  declared  on,  but  whether  the  same  is  the  iden- 
tical note,  and  his  sij?nature  genuine,  are  matters  with  which  he 
is  unacquainted,  and  he  requires  the  plaintiff  to  prove  the  same." 
He  then  denies  owing  $203.50,  as  alleged,  and  denies  that  the  note 
is  the  property  of  plaintiffs,  and  says  he  verily  believes  the  plain- 
tiffs hold  the  same  as  collateral  security  to  a  debt  due  by  one 
Wm.  Dishon  to  plaintiff's,  and  that  they  are  not  entitled  to  sue 
thereon,  and  have  only  a  special  temporary  lien  and  property  in 
the  note;  and  calls  for  a  reply  under  oath,  but  does  not  make 
oath  to  his  answer. 

The  plaintiffs  demurred  to  the  answer  in  its  several  parts,  and 
upon  several  grounds,  and  the  demurrer  was  sustained.  The 
defendant  declined  answering  over,  and  judgment  was  rendered 
for  the  plaintiff's,  and  the  defendant  appealed. 

Woodward,  J..  It  will  not  be  necessary  to  examine  the 
demurrer  in  its  details.  That  which  the  defendant  claims  as  a 
denial  of  the  execution  of  the  note  is  insufficient.  It  is  uncertain 
and  does  not  amount  to  a  denial.  If  he  desired  to  see  the  note, 
he  should  crave  an  inspection  of  it.  Without  an  affidavit  he 
might  deny  so  far  as  to  enable  him  to  offer  evidence  against  it, 
but  his  answer  must  be  an  explicit  denial.  Lyon  v.  Bunu,  6 
Iowa,  48. 

The  facts  pleaded  by  the  defendant  to  show  that  the  note  is 
not  the  property  of  the  plaintiffs  are  insufficient.  If  the  note  is 
in  their  hands  as  security,  they  may  sue  upon  it.  The  indorse- 
ment places  the  legal  property  in  them. 

The  denial  that  he  owes  the  sum  of  $203.50  is  not  sufficient.  It 
is  only  a  denial  that  he  owes  that  particular  sum.    ]\Iann  v.  Howe 

et  al.,  9  Iowa,  546. 

Jiidgment  affirmed. 


gEC   l/l  HOFFMAN    V.    EPPERS.-  581 

HOFFMAN  V.  EPPERS. 

41  Wis.,  251.     [1876.] 

This  action  is  to  recover  damages  for  an  assault  and  battery 
alleged  to  have  been  committed  by  the  defendant  upon  the  plain- 
tiff.^ The  complaint  sets  out  at  considerable  length  the  particu- 
lars of  the  alleged  battery,  and  certain  facts  attending  it,  which 
are  only  material  on  the  question  of  damages.  The  answer  is 
that,  "the  defendant  is  not  guilty  of  the  grievances  in  the  plain- 
tiff's complaint  alleged,  or  any  or  either  of  them,  or  any  part 

thereof." 

The  plaintiff  objected,  on  the  trial,  to  the  admission  of  any 
evidence  under  the  answer,  on  the  ground  that  it  contains  neither 
a  general  nor  a  specific  denial  of  any  of  the  allegations  of  the 
complaint.     *     *     * 

Lyon,  J.  No  formula  of  a  general  denial  is  given  in  the  stat- 
ute, and  hence  any  words  which  lairly  import  a  denial  of  all  the 
averments  of  the  complaint,  is  a  good  general  denial.  We  think 
such  is  the  import  of  the  answer  in  the  present  case.  Certainly 
the  pleader  so  intended  it,  and  it  is  scarcely  possible  that  the 
counsel  for  the  plaintiff  could  have  been  misled  by  it.  The 
answer  is  in  the  form  of  the  general  issue,  under  the  common 
law  system  of  pleadings,  in  actions  on  the  case  for  torts;  and 
such  form  has  a  definite,  well  settled  and  well  understood  signifi- 
cation. Construed  with  a  view  to  substantial  justice  between 
the  parties,  we  find  no  difficulty  in  holding  the  answer  a  good 
general  denial.    R.  S.  ch.,  125,  Sec.  21.     *     *     * 

Judgment  affirmed. 


CLARK  V.  FINNELL. 

16  B.  3Ianroe  (Ky.),  329.[1855.] 

Chief  Justice  :^LvRSIlALL  delivered  the  opinion  of  the  court. 

Finnell,  Kinkead,  and  Winston,  commissioners  appointed  by 
the  Kenton  Circuit  Court  to  close  the  affairs  of  the  Kentucky 
Trust  Company  Bank,  under  the  3d  section  of  an  act  to  amend 
the  charter  of  said  bank,  approved  January  2, 1852,  (Session  Acts, 


582  THE  ANSWER.  [Cu.VP.  IV. 

14),  brought  this  action  by  petition  against  Clark,  the  acceptor, 
Bobbins,  the  drawer,  and  Mack  and  Paysuu,  indorsers,  of  a  bill 
of  exchange  for  $7,321.40,  dated  at  Cincinnati,  October  6,  1854, 
payable  thirty  days  after  date,  at  the  Mechanic's  Bank  of  New 
York,  and  addressed  to  Clark  at  the  New  England  Bank,  Bos- 
ton, Massachusetts.  Process  upon  the  petition  was  served  upon 
Bobbins  and  Payson  alone,  but  Mack  united  with  them  in  filing 
an  answer  sworn  to  by  these  three,  and  a  demurrer  having  been 
sustained  to  each  paragraph  of  the  answer,  judgment  was  ren- 
dered against  the  defendants  without  naming  them,  for  $7,- 
321.40,  with  interest  from  the  6th  day  of  November,  1854,  and 
for  seventy-five  cents,  the  cost  of  protest,  together  with  the  costs 
of  the  suit.     *     *     * 

The  material  questions,  however,  arise  on  the  demurrer  to  the 
answer.  The  first  paragraph  says  the  defendants  do  not  owe, 
and  ought  not  to  pay,  the  amount  of  the  bill,  "for  they  do  not 
admit  the  regular  protest  thereof,  and  notice,  etc.,"  as  charged 
in  the  petition,  and  require  proof,  etc.  This  paragraph  of  the 
answer  is  clearly  insufficient  under  the  rule  prescribed  by  the 
2d  and  3rd  clauses  of  section  135  of  the  Code.  It  neither 
sets  forth  new  matter,  as  allowed  by  the  3rd  clause,  nor  contains 
a  denial  of  any  allegations  contained  in  the  petition,  nor  of  any 
knowledge  or  information  thereof  sufficient  to  form  a  belief. 
That  the  defendants  do  not  admit  a  certain  fact,  and  call  for 
proof,  etc.,  is  not  a  denial,  nor  sufficient,  under  the  Code,  to  put 
in  issue  a  fact  as  to  which  the  defendants  might  have  knowledge 
or  belief.  The  general  statement  that  the  defendants  do  not 
owe,  when  the  petition  merely  states  the  facts  from  which  indebt- 
edness or  liability  is  implied  by  law,  is  no  proper  response  to  the 
petition,  because  it  neither  denies  any  allegation  of  fact,  nor 
states  any  new  matter  constituting  a  defense.  But  if  it  were 
allowed  to  be  good  in  analogy  to  the  plea  of  nil  debit  or  non 
assumpsit,  it  might  authorize  a  defense  to  be  made,  in  the  evi- 
dence of  which  there  w^as  no  indication  in  the  answer.  And  the 
object  of  the  Code  is  that  the  pleadings  shall  state  facts,  and 
not  mere  implications  of  law.  The  court,  therefore,  properly  sus- 
tained the  demurrer  to  the  first  paragraph  of  the  answer,  and 
for  the  same  reasons  it  properly  rejected  the  proposed  amend- 
ment, which  in  form  and  substance  was  nothing  but  a  plea  of  7iil 
debit. 

Judgment  affirmed. 


Sec.  1.]  MANNY   &   CO.   V.  FRENCH.  583 

MANNY  &  CO.  V.  FRENCH. 
23  Iowa,  250.      [1867.] 

Cole,  J.  The  petition  is  in  the  usual  form.  It  avers  the  exe- 
cution of  the  note  by  the  defendant  to  the  payee ;  that  the  payee 
for  a  valuable  consideration,  duly  indorsed  and  transferred  the 
note  to  the  plaintiff,  and  that  the  same  was,  less  a  specified  credit, 
due  and  unpaid.  A  copy  of  the  note  and  indorsement  is  given. 
The  petition  was  sworn  to. 

The  defendant  filed  his  answer  in  three  counts,  first,  admitting 
the  execution  of  the  note  as  stated;  second,  "and  whether  the 
said  petitioner  is  the  owner  of  said  note  he  has  not  sruffic^.ent 
information  to  form  a  belief,  therefore  he  cannot  admit  or  deny 
the  same."  Third,  the  answer  claimed  set-off  as  to  a  part  of  the 
note.  The  answer  was  sworn  to.  The  plaintiff  admitted  the  set- 
off and  moved  for  judgment  on  the  pleadings.  The  court  sus- 
tained the  motion  and  rendered  judgment  accordingly.     *     *     * 

There  was  no  error  in  the  action  of  the  court.  Our  Code 
provides  (Rev.  §  2880)  that  the  answer  shall  contain,  "second, 
a  general  denial  of  each  allegation  of  the  petition,  or  else  of  any 
knouiedfje  or  information  thereof  sufficient  to  form  a  belief. 
#     *     *" 

The  second  count  of  the  answer,  fails  to  make  any  issue  to  be 
tried  by  a  jury  or  otherwise,  for  the  reason  that  it  does  not  deny 
that  defendant  has  knowledge  but  only  that  he  has  not  informa- 
tion sufficient  to  form  a  belief;  the  Code  requires  both,  and  the 
answer  contains  but  one.  See  Ketcham  v.  Lyerega,  1  E.  D. 
Smith  (N.  Y.),  553;  Edwards  v.  Lent,  8  How.  Pr.,  28;  Elton  v. 
Markham,  20  Barb.,  343 ;  Smith  v.  Greenin,  2  Sandf .  S.  C,  702. 

Our  system  of  pleading  is  essentially  a  fact  system;  it  is  fur- 
thermore a  system  adapted  only  to  substantial  issues,  and  can- 
not properly  or  successfully  be  diverted  to  sham  defenses. 

Affirmed. 


584  THE  ANSWER.  [ChAP.  IV. 

HIGGINS  V.  GRAHAM. 

143  Cal,  131.        [1904.] 

Smith,  C.  This  suit  was  brought  on  a  promissory  note,  dated 
July  30,  1896,  and  due  two  months  after  date,  for  the  sum  of 
$375.  The  defendant  had  judgment,  from  which,  and  from  an 
order  denying  his  motion  for  a  new  trial,  the  plaintiff  appeals. 

The  only  question  involved  is  as  to  the  statute  of  limitations, 
and  this  turns  entirely  upon  the  effects  of  the  pleadings,  find- 
ings, and  judgment.  The  note  is  set  out  in  the  complaint,  and 
on  its  face  appears  to  have  been  executed  at  Pittsburg,  Pa.  The 
complaint  was  filed  September  5,  1901,  more  than  five  years  after 
the  maturity  of  the  note ;  but  in  explanation  of  the  delay  several 
acknowledgments  of  the  indebtedness  are  alleged,  of  dates, 
respectively,  October  14,  1897,  June  15,  1898,  November,  1899, 
May,  1901,  and  July,  1901.  The  allegation  of  the  first  acknowl- 
edgment is:  "That  on  or  about  the  14th  day  of  October,  1897, 
defendant  acknowledged  to  plaintiff  his  (defendant's)  said 
indebtedness  upon  the  said  promissory  note  in  the  words  fol- 
lowing, to-wit:  'This  (referring  to  the  said  note)  is  a  just  debt. 
You  have  accommodated  me  and  I  will  pay  it.'  "  The  allega- 
tions of  the  other  acknowledgments  are  similar  in  form ;  and  it  is 
further  alleged  "that  by  each  and  all  of  his  said  words,  promises, 
and  acknowledgments,  hereinbefore  alleged,  defendant  meant 
and  referred  to,  and  acknowledged,  and  promised  to  pay  to  plain- 
tiff, his  (the  said  defendant's)  indebtedness  upon  the  said  prom- 
issory note."  The  answer,  referring  to  the  several  acknowledg- 
ments, denies,  as  to  each,  that  defendant  ever  "acknowledged  to 
plaintiff  his  indebtedness  upon  the  promissory  note  set  out  in 
the  plaintiff's  complaint  in  the  following  words"  and  so  on,  as 
in  the  complaint.  It  denies,  also,  that  "by  any  of  the  promises 
and  acknowledgments  claimed  to  have  been  made  by  the  defend- 
ant, and  set  out  in  the  plaintiff's  complaint,  he  promised  to  pay 
any  indebtedness  upon  said  promissory  note."  Finally,  sub- 
division 1,  section  339,  Code  Civ.  Proc,  is  pleaded  in  bar  of  the 
action. 

The  findings  are:  That  plaintiff's  cause  of  action  is  barred 
by  the  statute  of  limitations  as  alleged;  "that  (as  to  each  of  the 
alleged  acknowledgments)  it  is  not  true  that  on  (the  day  named), 
or  at  any  other  time,  or  at  all,  defendant  acknowledged  to  plain- 


Sec.  1.]  iriGGiNs  v.  graham.  585 

tiff  his  indebtedness  upon  the  promissory  note  set  out  in  the 
plaintiff's  complaint  in  the  following  words,"  etc.,  as  in  the 
complaint;  and  finallj^  "that  it  is  not  true  that  at  any  time,  or 
at  all,  defendant  ever  made  an  acknowledgment  or  acknowledg- 
ments admitting  his  obligation  to  pay  said  note,  or  that  he  ever 
agTeed  or  premised  to  pay  the  same."  On  the  trial  no  evidence 
was  offered  by  the  plaintiff;  and  none  by  the  defendant,  except 
as  to  the  effect  that  he  was  a  resident  of  the  state  of  Pennsyl- 
vania until  the  summer  of  1897,  and  since  then  has  been  a  resi- 
dent of  the  city  of  Los  Angeles.  The  position  of  the  appellaut 
is  that  the  allegations  of  the  complaint  as  to  the  several  acknowl- 
edgments made  by  the  defendant  are  not  effectually  denied,  and 
hence  that,  upon  the  admitted  facts,  the  case  comes  within  the 
saving  clause  of  section  360,  Code  Civ.  Proc,  or,  failing  this,  that 
the  provision  in  question  is  repugnant  to  section  8,  article  1,  of 
the  federal  constitution,  relating  to  the  regulaton  of  commerce, 
and  to  section  2,  art.  4,  and  the  fourteenth  amendment,  relating 
to  the  rights  of  citizens  of  the  United  States  in  the  several  states. 
The  latter  point  may  be  disposed  of  by  saying  that  we  do  not 
perceive  how  any  of  the  constitutional  provisions  cited  can  be 
regarded  as  applicable  to  the  case.  The  provision  in  question,  or 
legislation  of  a  substantially  similar  character,  has  existed  in 
this  state  for  more  than  half  a  century  (Hittell's  Gen.  Laws,  p. 
636;  St.  1852,  p.  161,  c.  84;  St.  1855,  p.  75,  c.  66)  ■  and,  though 
repeatedly  before  this  court,  the  constitutionality  of  such  legis- 
lation has  never  been  questioned.  Patten  v.  Eay,  4  Cal.,  287; 
Parke  v.  Williams,  7  Cal.,  247;  Scarborough  v.  Dugan,  10  Cal.[ 
305;  Palmer  v.  Schaw,  16  Cal,  93 ;  Dome  v.  Thornburgh,  90  Cal.,' 
66,  27  Pac,  30,  25  Am.  St.  Eep.,  100;  Harrigan  v.  Home  Life' 
Ins.  Co.,  128  Cal.,  543,  58  Pac,  180,  61  Pac,  99. 

With  regard  to  the  former  point,  the  position  of  the  appel- 
lant is  that  the  denials  in  the  answer  are  pregnant  with  the 
admission,  in  each  case,  of  an  acknowledgment  of  the  debt  in 
some  other  words  than  those  charged  (Code  Civ.  Proc,  §437; 
Pcmeroy's  Ed.,  p.  220  et  seq.,  and  authorities  cited),  and  hence 
that  the  allegations  of  the  complaint  are  to  be  taken  as  substan- 
tially admitted.  To  this  it  is  replied  by  the  respondent  that  the 
complaint  is  to  be  construed  as  averring  that  the  promises  or 
acknowledgments  alleged  were  made  in  writing,  and  hence  that, 
under  similar  rules  of  pleadings,  it  was  sufficient  to  deny  the 
writings  alleged. 


586  THE  ANSWER.  [ClIAI*.  IV. 

Of  the  respondent's  contentions,  the  first  is  clear;  for  other- 
wise, under  section  360,  Code  Civ.  Proc,  the  alleged  acknowl- 
edgments would  be  immaterial.  The  facts  alleged  are  therefore 
in  effect  simply  that  the  defendant  made  or  executed  the  several 
writings,  or,  we  may  say,  written  instruments  described.  Such 
being  the  case,  the  material  fact  alleged  in  each  of  the  allega- 
tions was  the  making  of  the  written  promise  or  acknowledgment 
set  up,  and  it  was  sufficient  for  the  defendant  to  deny  this,  which 
he  in  effect  did  in  denying  that  he  ever  made  any  of  the  acknowl- 
edgments in  the  words  alleged ;  for,  if  these  denials  could  be  con- 
strued as  admitting  acknowledgments  of  the  debt  in  other  words, 
this  would  be  simply  an  admission  of  writings  other  than  those 
alleged,  which,  under  familiar  rules  of  practice,  would  be  vari- 
ance from  the  writings  alleged,  and  therefore  immaterial.  1 
Chitty  on  Plead.,  312,  318;  1  Green,  on  Ev.,  §69  ad  fin.  This 
rule  has  always  been  applied  with  peculiar  strictness  to  cases 
where — as  here — the  tenor  of  the  writing,  or  in  other  words,  its 
language,  is  pleaded;  the  words,  in  such  cases,  being  regarded 
as  "descriptive  of  the  identity"  of  the  writing  alleged.  1 
Starkie  on  Ev.,  628;  Eeg.  v.  Drake,  2  Salk.,  660;  Clark  v.  Phil- 
lips, Hemp.,  294,  Fed.  Cases,  No.  2831a ;  28  Am.  &  Eng.  Encyc, 
p.  50  and  note.  And  see,  also,  recitals  in  the  statutes  cited  2 
Saunders  PI.  &  Ev.,  1189  ct  seq.,  title  "Variance." 

The  doctrine  of  variance  has,  indeed,  been  greatl}^  mitigated 
in  its  application  by  the  English  statutes  cited,  and  in  this  state 
by  the  provisions  of  the  Code  of  Civil  Procedure  (sections  469- 
474)  ;  but  the  former  operate  only  by  providing  for  amendments, 
and  the  latter  mainly  in  the  same  way,  though  also  modifying 
the  rules  of  evidence.  Otherwise,  the  doctrine  remains  unaf- 
fected, and  is,  indeed,  recognized  and  affirmed  bj-  the  curative 
statutes  themselves.  The  rule,  therefore,  is  "the  same  under  our 
system  of  practice  as  at  common  law,"  except  in  so  far  as  the 
consequences  of  a  variance,  may,  under  the  statutes,  be  obviated 
at  the  trial.  Stout  v.  Coffin,  28  Cal.,  67.  The  case  is  therefore, 
the  same  as  that  of  a  suit  on  a  promissory  note;  the  complaint 
alleges  that  on  a  day  named  ' '  the  defendant  executed  his  prom- 
issory note  in  the  words  and  figures  following,"  etc.  Here  a 
simple  denial  of  the  execution  of  the  alleged  note  would  be  suf- 
ficient (Code  Civil  Proc,  §§447,  448);  and  a  denial  that  on 
the  day,  named,  or  at  any  other  time,  the  defendant  "executed 
the  promissory  note  set  out  in  the  complaint,"  or  "a  promissory 


Sec.  1.]  HiGGiNS  V.  graham.  587 

note  in  the  words  and  figures  set  out  in  the  complaint,"  or,  "in 
the  words  and  figures  following, ' '  etc.,  would  be  precisely  equiva- 
lent. 

We  advise  that  the  judgment  and  order  appealed  from  be 

affirmed. 

Judgment  affirmed. 


DIMOX  V.  DUNN. 

15  N.  Y.,  49S.     [1857.] 

Appeal  from  a  judgment  of  the  Supreme  Court.  The  action 
Avas  commenced  June  24,  1852,  and  was  brought  to  foreclose 
a  mortgage  executed  by  the  defendant  Dunn  to  the  plaintiff.  The 
complaint  stated  the  execution  of  a  bond  by  Dunn  to  the  plain- 
tiff, dated  July  8,  1845,  in  the  penalty  of  $500,  upon  condition 
that  the  same  should  be  void  if  the  defendant  should  pay  to  the 
plaintiff  $250,  on  the  8th  day  of  July,  1855,  with  interest  at  7 
per  cent,  payable  semi-annually,  and  that  "it  was  thereby  fur- 
ther agreed  that  if  any  default  should  be  made  in  the  payment 
of  said  interest  or  any  part  thereof,  on  any  day  whenever  the 
same  was  made  payable  as  above  expressed,  and  should  the  same 
remain  unpaid  and  in  arrear  for  ten  days,  then,  after  the  lapse 
of  the  said  ten  days,  the  aforesaid  principal  sum,  with  all  arrear- 
ages of  interest,  should,  at  the  option  of  the  plaintiff,  become  and 
be  due  and  be  immediately  payable  thereafter."  The  complaint 
proceeds  to  state  that,  as  collateral  security  for  the  payment  of 
said  indebtedness,  the  defendant  Dunn,  on  the  same  day,  exe- 
cuted to  the  plaintiff  a  mortgage  on  certain  premises  which  are 
described,  "with  the  same  condition  as  the  said  bond,"  and  that 
the  mortgage  was  duly  recorded  July  16,  1845.  It  then  states  a 
default  in  the  payment  of  half-a-year's  interest  on  the  mortgage 
debt,  which  fell  due  January  8th,  1852,  and  claims  that  the 
whole  debt  and  interest  has,  in  consequence  thereof,  become  pay- 
able. Bridges  and  wife  are  made  defendants  as  parties  having 
some  interest  subsequent  to  the  mortgage.  Bridges  answered, 
setting  forth  a  conveyance  with  warranty,  by  Dunn  to  himself, 
of  the  mortgaged  premises,  dated  24th  of  September,  1850,  "sub- 
ject to  a  certain  mortgage  encumbering  the  same,"  executed  by 
Dunn  to  the  plaintiff*,   bearing  date  of   July  8th,   1845,  and 


588  THE  ANSWER.  [ClIAP.  IV. 

recorded,  etc.,  stating  the  time  and  place  of  record,  with  the  book 
and  page.  He  avers  that  this  is  the  only  mortgage  upon  the 
premises,  and  that  it  is  conditioned  for  the  payment  of  $250, 
lawful  money,  on  the  8th  day  of  July,  1855,  and  the  interest 
thereon  at  7  per  cent,  to  be  paid  semi-annually,  "and  docs  not 
contain  any  condition,  agreement,  (,r  clause  that  in  case  the 
interest  or  any  part  thereof,  on  any  day  v/henever  the  same  was 
made  payable,  should  remain  unpaid,  and  in  arrears  for  ten 
days,  the  principal  sum,  all  arrearages  of  interest  should,  at  the 
option  of  the  plaintiff,  become,  and  be  due  and  payable  immedi- 
ately thereafter;"  that  the  defendant  caused  said  deed  to  be 
recorded.  The  defendant  avers  the  tender  of  the  half-year's 
interest  alleged  to  be  in  arrear,  after  ten  days  had  lapsed  and 
before  the  commencement  of  the  action,  which,  it  is  stated,  he 
brings  into  court.  He  denies  that  he  had  any  notice  or  knowl- 
edge that  the  bond  contained  any  such  agreement  as  is  set  forth 
in  the  complaint,  prior  to  the  time  when  he  made  such  tender. 
The  answer  concludes  by  a  denial  that  the  plaintiff  has  a  right 
to  claim  that  the  whole  debt  had  become  payable. 

The  plaintiff  demurred  to  the  answer ;  but  the  Supreme  Court 
held  that  it  set  forth  a  defense  to  the  action,  and  gave  judgment 
for  the  defendant,  with  leave  to  the  plaintiff  to  reply ;  and  ulti- 
mately, the  plaintiff  not  availing  himself  of  the  liberty  thus 
given,  final  judgment  was  perfected  in  favor  of  the  defendant, 
which  was  affirmed  at  a  general  term,  and  the  plaintiff  appealed. 

Denio,  C.  J.  The  correct  method  for  the  defendant  to  have 
brought  the  question  which  he  wishes  to  raise,  before  the  court, 
was  to  set  out  the  mortgage  verbatim,  and  then  to  have  stated  the 
matter  of  avoidance,  which,  upon  his  construction  of  the  mort- 
gage would  have  barred  the  action ;  or  he  might  have  denied  the 
execution  of  the  alleged  mortgage.  Either  of  these  methods 
would  have  raised  the  question  of  law  arising  upon  the  instru- 
ment ;  but  an  averment  that  a  certain  clause  is  not  contained  in 
the  mortgage,  without  giving  its  actual  language,  does  not  afford 
sufficient  data  for  determining  its  legal  effect.  Such  an  answer 
would  have  been  insufficient  under  the  former  rules  of  pleading. 
But  as  those  rules  are  abolished,  we  are  perhaps  obliged  to  pro- 
nounce upon  these  securities  in  the  light  of  such  averments 
respecting  them  as  the  parties  have  furnishd  us  with. 

The  complaint  sets  out  the  bond,  and  as  a  portion  of  it,  the 
clause  by  which  the  payment  of  the  principal  of  the  debt  was 


Sec.  1.]  DiMON  V.  duxn.  589 

to  be  accelerated  by  a  default  in  the  interest ;  and  it  then  states 
the  execution  of  the  mortgage  on  the  same  day  "as  collateral 
security  for  the  payment  of  such  indebtedness, ' '  and  that  it  con- 
tained the  same  condition  as  the  one  in  the  bond.  As  the  plain- 
tiff was  only  bound  to  state  the  legal  effect  of  his  securities, 
leaving  it  to  the  defendant,  if  he  questions  the  accuracy  of  the 
statement,  to  set  them  out  or  to  deny  the  deeds,  his  pleading  is 
not  to  be  understood  as  averring  that  the  mortgage  contained  a 
condition  in  the  same  language  with  that  embraced  in  the  bond. 
The  complaint  would  be  proved  in  substance  if  it  should  appear 
that  the  mortgage  contained  a  reference  to  the  bond  in  the  usual 
form,  ' '  according  to  the  condition  of  a  certain  bond,  bearing  even 
date  with  the  mortgage."  Such  reference  would  be  sufficient  to 
make  the  mortgage  payable  upon  the  same  conditions,  in  all 
respects,  with  the  bond ;  and  it  might,  then,  properly  be  said  that 
the  mortgage  was  upon  the  same  condition  as  the  bond.  A 
mortgage  is  always  collateral  to  the  debt  attempted  to  be  secured, 
and  when  it  refers  to  the  instrument  which  is  the  principal 
security,  the  two  instruments  are  to  be  taken  together,  and  form 
but  one  security.  Now  to  say,  as  this  answer  does,  that  the 
mortgage  does  not  contain  any  condition,  agreement  or  clause, 
in  the  terms  stated  in  the  averment  in  the  complaint  where  it 
sets  out  the  conditions  of  the  bond,  does  not  meet  the  substance 
of  the  allegation  that  the  mortgage  has  the  same  condition  as 
the  bond.  It  simply  pleads  the  existence  of  certain  language, 
without  denying  the  substance  of  the  contract  as  set  out  in  the 
complaint,  and  without  setting  out  the  contract  itself,  so  that  the 
court  may  see  what  it  is.  It  may  well  be  that  nothing  is  said,  in 
terms,  in  the  mortgage,  as  to  the  effect  of  the  non-payment  of 
interest ;  and  yet  it  may  refer  to  the  bond  in  such  a  manner  as 
to  adopt  its  provisions.  It  is  not  stated,  either  in  the  complaint 
or  the  answer,  that  there  was  any  covenant  in  the  mortgage  for 
the  payment  of  the  debt.  Assuming  that  there  is  no  such  cove- 
nant, the  bond  is  the  only  personal  obligation.  The  object  of  the 
mortgage  is  to  reinforce  that  obligation;  and  a  reference  in  the 
mortgage  to  the  paper  containing  such  obligation,  makes  the 
bond  a  part  of  the  mortgage  for  all  essential  purposes.  The 
answer,  to  present  a  bar  to  a  foreclosure  should,  at  least,  have 
shown  that  there  was  nothing  on  the  face  of  the  mortgage  to 
connect  it  with  the  bond. 

I  conceive  that  the  recording  laws  have  nothing  to  do  with 


590  THE  ANSWER.  [ChAP.  IV. 

the  case.  The  defendant  purchased  with  a  full  knowledge  of 
the  plaintiff's  mortgage,  and  subject  to  it.  The  existence  or 
effect  of  constructive  notice,  arising  out  of  the  record,  is 
immaterial  to  the  case.  The  defendant,  by  his  purchase,  under- 
took to  pay  oft'  the  mortgage,  according  to  its  terms.  If  the 
mortgage  referred  to  the  bond,  and  the  answer  does  not  deny 
that  it  did,  he  had  notice  of  that  instrument  and  was  bound  to 
make  himself  acquainted  with  its  provisions.  I  am  of  opinion 
that  the  answer  is  insufficient. 

The   judgment   of   the   Supreme   Court   should   therefore   be 
reversed  and  judgment  should  be  given  for  the  plaintiff. 

Judgment  reversed. 


FULLER  V.  MANHATTAN  CONST.  CO. 

88  N.  Y.  8.,  1049.     [1904.] 

Scott,  J.  The  complaint  alleges  the  incorporation  of  the 
plaintiff  and  defendant ;  that  plaintiff  was  the  lessee  of  a  certain 
building;  that  on  May  23,  1903,  the  plaintiff  leased  to  the 
defendant  two  rooms  in  said  building  for  a  period  of  11  months, 
ending  May  1,  1904;  that  the  rent  for  the  months  of  November 
and  December,  1903,  and  January,  February,  and  March,  1904, 
became  due  and  were  demanded,  but  plaintiff  has  refused  to  pay 
the  same.  The  answer  denies  on  information  and  belief  the 
incorporation  of  plaintiff ;  and  that  it  was  lessee  of  the  building, 
and  denies  the  allegations  of  paragraphs  7,  8,  and  9,  of  the  com- 
plaint, being  the  allegations  respecting  the  rent  for  the  months 
of  January,  February,  and  March^  1904.  It  then  sets  forth,  as 
a  separate  defense,  that  the  rent  for  November  and  December 
became  due  and  was  unpaid,  and  that  the  plaintiff  harassed  and 
annoyed  the  defendant  by  threats  and  intimidation,  and  that 
when,  in  March,  1904,  defendant  decided  to  leave  said  rooms 
plaintiff  prevented  it  from  removing  its  effects  therefrom.  For 
a  third  defense,  and  by  way  of  counter-claim,  the  defendant 
reaffirms  the  allegations  of  its  second  defense,  and  demands 
damages  therefor.  The  plaintiff  demurred  to  the  whole  answer 
as  insufficient  in   law  upon   the   face   thereof,   and   separately 


Sec.  1.]  FuixER  v.  Manhattan  const,  co.  591 

demurred  to  the  counter-claim  as  not  stating  facts  sufficient  to 
constitute  a  cause  of  action.    The  demurrer  was  overruled. 

The  ^-hole  theory  of  the  defense  and  counter-claim  is  based 
upon  the  erroneous  apprehension  that  the  covenant  of  quiet 
enjojTnent  in  a  lease  is  broken,  simply  because  the  landlord  in 
some  way  annoys  the  tenant  in  the  possession  and  enjoyment  of 
the  demised  premises.  Such  is  not  the  law.  To  constitute  a 
breach  of  the  covenant,  there  must  be  an  actual  or  constructive 
eviction,  and  there  cannot  be  deemed  to  have  been  a  constructive 
eviction  without  a  surrender  of  the  premises.  And  to  constitute 
a  defense  to  an  action  for  rent,  the  eviction  must  take  place 
before  the  rent  becomes  due.  Gugel  v.  Isaacs,  21  App.  Div.,  504, 
48  N.  Y.  Supp.,  594.  In  the  present  case  the  defendant  did  not 
attempt  to  leave  before  March  15th,  and  the  rent  for  March,  by 
the  terms  of  the  lease,  became  due  on  the  first  of  the  month. 
So,  even  if  the  defendant  should  claim  that  the  acts  of  the  land- 
lord amounted  to  a  constructive  eviction,  and  that  they  were 
about  to  surrender  possession  in  consequence  thereof  on  March 
15,  these  facts,  if  sustained,  would  be  no  defense  to  an  action  for 
the  March  rent.  The  facts  stated  in  the  second  defense  do  not, 
therefore,  constitute  a  sufficient  defense  to  the  action  for  rent. 
Nor  are  they  sufficient  to  sustain  a  counter-claim.  The  acts  of 
the  landlord,  if  established,  are  not  a  violation  of  the  contract  of 
leasing,  but  amount  to  a  tort,  if  anything,  and  damages  therefor 
may  not  be  counter-claimed  in  an  action  upon  a  contract  of 
lease.  It  is  clear,  therefore,  that  the  facts  alleged  in  the  second 
defense  are  insufficient,  and  that  the  demurrer  to  the  counter- 
claim should  have  been  sustained. 

The  demurrer  for  insufficiency,  being  to  the  whole  answer, 
was  properly  overruled  if  there  is  an  issue  raised  by  any  of  the 
denials  or  allegations.  The  defendant  relies  upon  its  denials. 
These  are  three  in  number,  but  unless  they  are  denials  of  material 
allegations  of  the  complaint,  or  serve  to  put  in  issue  some  fact 
alleged  in  the  complaint  which  the  plaintiff  must  prove  in  order 
to  recover,  and  which  the  defendant  may  disprove,  they  raise  no 
issue,  and  are  unavailing.  The  denial,  on  information  and 
belief  of  plaintiff's  incorporation,  raises  no  issue.  The  like 
denial  that  the  plaintiff  is  the  lessee  of  the  building  in  which 
defendant  rented  offices,  likewise  raises  no  issue,  because  the 
tenant  cannot  question  his  landlord's  title  to  the  demised 
premises. 


592  THE  AxNSWEH.  [CUAP.  1\'. 

Tlie  denial  of  the  allegations  respecting  the  nonpayment  of 
the  rent  for  January,  February,  and  March  also  raises  no  issue, 
when  taken  in  conjunction  with  the  circumstances  that  the  lease 
is  admitted  by  a  lack  of  denial.  That  the  rent  became  due  and 
payable  is  a  conclusion  of  law,  and  not  of  fact,  and  is  not  put  in 
issue  by  the  denial.  Whether  it  was  demanded  or  not  is  imma- 
terial, and  the  denial  of  a  demand  is  not,  therefore,  the  denial 
of  a  material  fact.  The  general  denial  of  all  allegations,  includ- 
ing the  allegation  of  nonpayment,  is  not  sufficient  to  permit  proof 
of  payment,  which  must  be  pleaded  in  order  to  be  proved.  It 
follows  that  none  of  the  denials  are  sufficient  to  relieve  the 
answer  of  the  charge  of  insufficiency. 

Judgment  reversed,  and  demurrer  sustained,  with  costs  in  this 
court  and  the  court  below,  with  leave  to  defendant  to  amend  its 
answer  within  20  days  upon  payment  of  costs. 


MARSHALL  v.  THE  THAMES  FIRE  INS.  CO. 
43  Mo.,  586.      [1869.] 

Wagner,  Judge,  delivered  the  opinion  of  the  court. 

Notwithstanding  the  voluminous  record  in  this  case,  the  real 
matter  in  controversy  may  be  compressed  within  a  very  small 
compass.  The  issues  framed  by  the  parties  made  the  result  turn 
purely  on  questions  of  fact^  and  if  there  was  no  misdirection  by 
the  court,  or  error  in  its  rulings,  the  finding  of  the  jury  cannot 
be  disturbed.  The  petition  alleged  that  by  the  policy  of  insur- 
ance, the  boat  was  valued  at  one  hundred  and  sixty  thousand 
dollars,  and  that  at  the  time  of  its  loss  or  destruction  by  fire,  it 
was  of  the  value  of  one  hundred  and  twenty-five  thousand  dol- 
lars, and  more  than  all  insurance  thereon.  The  defendant,  in  its 
answer,  did  not  controvert  this  allegation,  but  averred  as  matter 
of  defense,  that  the  burning  of  the  said  steamboat  Magnolia,  the 
boat  described  in  the  petition,  was  occasioned,  caused,  and 
brought  about  by  the  direct  agency,  procurement,  contrivance,  and 
direction  of  Marshall  and  Kilpatrick,  the  plaintifi's.  The  whole 
defense  was  distinctly  staked  upon  that  issue,  giving  the  defend- 


Sec.  1.]  MARSHALL    V.    THE    THAMES    FIRE    INS.    CO.  593 

ant  the  affirmative;  and  all  material  allegations  in  the  petition, 
which  were  well  pleaded,  stood  admitted.  The  question  of 
pleading  is  of  essential  importance  in  view  of  the  instruction  of 
the  court,  which  will  presently  be  adverted  to.  It  may  not  be 
easy  to  define  on  all  occasions,  what  are  material  averments  in  a 
petition.  An  immaterial  averment  need  not  be  denied,  but  a 
material  one  must  be,  else  it  wall  be  taken  as  confessed.  The 
practice  act  requires  that  the  plaintiff  shall  make  in  his  petition 
a  plain  and  concise  statement  of  the  facts  constituting  his  cause 
of  action;  and  when  issue  is  intended  to  be  joined  upon  these 
facts,  the  answer  of  the  defendant  must  contain  a  special  denial 
of  each  material  allegation.  Under  the  common  law  system  of 
pleading,  if  the  joinder  was  on  an  immaterial  issue,  the  court 
would  award  a  repleader. 

The  allegation  that  the  boat  was  worth  one  hundred  and 
twenty-five  thousand  dollars  was  immaterial,  and  required  no 
denial.  But  is  the  same  true  of  the  further  averment  that  she 
was  worth  "more  than  all  the  insurance  thereon."  The  state- 
ment was  of  consequence,  because  there  was  other  insurance  on 
the  boat  besides  the  policy  of  the  defendant,  and  it  became  nec- 
essary to  show  the  relation  which  the  value  of  the  boat  bore  to 
the  amount  of  insurance.  For  if  the  amount  of  insurance  was 
greater  than  the  value,  the  plaintiffs  could  only  recover  in  the 
proportion  that  the  value  bore  to  the  boat.  The  instruction  com- 
plained of  told  the  jury  "that  it  stands  admitted  by  the  plead- 
ings in  the  case  that  the  value  of  the  steamboat  Magnolia,  at  the 
time  of  the  fire  which  destroyed  her,  was  greater  than  the  whole 
amount  for  which  she  was  insured. ' ' 

I  have  no  doubt  about  the  correctness  of  the  instruction.  The 
allegation  was,  in  substance,  that  the  boat  was  worth  more  than 
the  whole  amount  for  which  she  was  insured ;  and  had  here  been 
a  denial  interposed — if  the  plaintiffs  had  not  proved  the  truth 
of  the  statement,  or  it  had  been  proved  to  be  untrue — no  recov- 
ery could  have  followed,  except  for  the  proportional  part  which 
they  might  have  shown  themselves  entitled  to.     *     *     * 

Judgment  affirmed. 


38 


594  THE  ANSWER.  [ChAP.  IV, 

HARDEN  V.  ATCHISON  &  NEBRASKA  R.  R.  CO. 

4  Neb.,  521.     [1876.] 

Maxwell,  J.  The  plaintiff  filed  his  petition  in  the  district 
court  of  Richardson  county,  alleging  that  on  the  twenty-first  day 
of  July,  1873,  a  mare  belonging  to  plaintiff,  was  on  the  rail- 
road track  of  the  defendant,  in  Falls  City  precinct,  Richardson 
county,  when  a  certain  train  of  cars  belonging  to  the  defendant, 
and  managed  and  controlled  by  its  agent  and  employes,  was 
passing  over  the  railroad  track.  That  the  said  agents  and 
employes  of  said  railroad,  negligently,  carelessly,  and  wantonly, 
ran  its  engine  and  train  of  cars  upon,  over  and  against  said 
mare,  breaking  one  of  her  legs  and  causing  other  injuries,  to  the 
damage  of  the  plaintiff  in  the  sum  of  $75.00,"  etc.  It  was  also 
alleged  in  the  petition  that  the  railroad  was  not  fenced,  and  that 
it  had  been  constructed  more  than  six  months,  at  the  time  the 
injury  was  committed. 

The  defendant  answered  the  petition  of  the  plaintiff  as  fol- 
lows: "The  defendant,  answering  the  petition  of  said  plaintiff 
heretofore  filed  against  it  in  the  above  entitled  cause,  sa^^s  and 
denies  that  it  negligently,  carelessly,  and  wantonly  ran  its  engine 
or  locomotive  and  train  of  cars  over  or  against  the  said  mare  of 
the  said  plaintiff.  Defendant  denies  that  the  notice  required  by 
the  statute,  in  such  cases  made  and  provided,  was  given  it  by  said 
plaintiff,  as  to  entitle  said  plaintiff  to  double  damages.  Defend- 
ant denies  that  the  said  mare  was  worth  the  sum  of  seventy-five 
dollars.  Defendant  alleges  that  the  said  mare  of  said  plaintiff 
was  injured  in  the  manner  alleged  by  said  plaintiff's  petition  by 
and  through  the  negligence  and  carelessness  of  said  plaintiff." 

On  trial  of  the  cause,  the  court  instructed  the  jury  as  follows : 
"This  suit  is  brought  by  the  plaintiff  to  recover  damages  of 
defendant,  alleged  to  be  sustained  by  plaintiff,  by  reason  of  the 
defendant  negligently,  carelessly,  and  wantonly,  running  its 
engine  upon  and  so  badly  injuring  his  mare  as  to  render  it  worth- 
less. The  defendant  denies  that  its  engine  or  locomotive  and 
train  of  cars  ran  over  or  against  the  mare  of  the  plaintiff.  This 
denial,  puts  the  plaintiff  upon  proof  of  his  cause  of  action ;  has 
he  proved  the  injury  was  done  by  the  defendant,  or  any  of  its 
employes?  I  must  instruct  you  as  a  matter  of  law,  that  the 
plaintiff  has  failed  to  prove  that  the  defendant  committed  the 


Sec.  1.]  HARDEN  V,   A.    &  N.   R.    R.    CO.  595 

injury,  and  your  verdict  must  be  for  the  defendant."  To  this 
instruction  the  plaintiff  excepted.  The  jury  found  a  verdict  for 
the  defendant.  The  plaintiff  filed  a  motion  for  a  new  trial, 
which  was  overruled,  and  judgment  was  rendered  dismissing  the 
ease.    The  case  is  brought  into  this  court  by  petition  in  error. 

Sec.  134,  of  the  code  of  civil  procedure,  provides,  that  "every 
material  allegation  of  the  petition,  not  controverted  by  the 
answer,  and  every  material  allegation  of  new  matter  in  the 
answer,  not  controverted  by  the  reply,  shall  for  the  purposes  of 
the  action  be  taken  as  true." 

"Without  considering  the  admissions  contained  in  the  answer, 
is  there  any  denial  therein,  that  the  injury  complained  of  was 
committed  by  the  defendant?  We  think  not.  It  is  denied  that 
the  "defendant  negligently,  carelessly,  and  wantonly  ran  its 
engine  or  locomotive  and  train  of  cars  over,  or  against  the  said 
mare  of  the  said  plaintiftV'  but  this  is  a  mere  denial  of  negli- 
gence on  the  part  of  the  defendant,  and  not  a  denial  that  the 
defendant  occasioned  the  injury  complained  of.  "A  defendant 
must  answer  the  charge  directly,  without  evasion,  and  not  by 
way  of  negative  pregnant."  1  Vansantvoords,  Eq.,  204.  Moaks 
Van  Sant,  PL,  814.  Baker  v.  Bailey,  16  Barb.,  56 ;  Fish  v.  Red- 
ington,  31  CaL,  194;  Robbins  v.  Lincoln,  12  Wis.,  8.  A  denial 
must  be  direct  and  unambiguous,  and  must  answer  the  substance 
of  each  direct  charge ;  and  such  facts  as  are  not  denied  by  the 
answer  for  the  purposes  of  the  action,  are  to  be  taken  as  true. 
This  requirement  of  the  statute  is  not  designed  to  prevent  the 
defendant  from  denying  such  facts  in  the  petition,  as  he  believes 
to  be  untrue,  but  to  prevent  the  introduction  of  fictitious  issues ; 
and  while  denials  must  be  positive  and  direct,  the  verification 
need  only  be,  that  the  defendant  believes  the  facts  stated  in  the 
answer  to  be  true. 

There  being  no  denial  in  the  answer  that  the  defendant  com- 
mitted the  injuries  complained  of,  no  proof  of  those  facts  was 
required.  The  court  therefore  erred  in  instructing  the  jury  to 
find  for  the  defendant.  The  judgment  of  the  district  court  is 
reversed  and  the  case  remanded  for  further  proceedings. 

Reversed  and  remanded. 


596  THE  ANSWER.  [ChAP.  IV. 

'   HANSON  V.  LEHMAN. 

18  Neb.,  564.     [1886.] 

Reese,  J.  Plaintiff  seeks  the  specific  performance  of  con- 
tract for  the  sale  of  certain  real  estate,  executed  by  the  defend- 
ant to  her.  The  contract,  an  ordinary  bond  for  a  deed,  is  set  out 
in  the  petition.  The  recital  is  that  plaintiff  has  agreed  to  pur- 
chase the  property  described,  "as  follows:  Twenty-five  dollars, 
with  interest  from  date  at  the  rate  of  ten  per  cent  per  annum, 
the  above  amount  and  interest  to  be  paid  on  or  before  the  first 
day  of  April,  1882."  No  other  reference  is  made  to  the  time  of 
payment,  nor  to  the  performance  or  failure  to  perform  the  con- 
tract on  the  part  of  plaintiff.  The  contract  was  signed  by  the 
defendants.  The  petition  alleges  that  the  time  for  payment  was 
extended  by  defendant  for  a  year  or  longer,  if  desired  by  the 
plaintiff,  and  that,  shortly  after  the  expiration  of  the  year,  she 
tendered  the  money  due  and  demanded  a  deed,  which  was 
refused.  The  answer  admits  the  making  of  the  contract,  but 
denies  that  he  did,  "on  or  about  the  first  day  of  April,  1882, 
grant  an  extension  of  time  for  the  payment  of  the  $25,  and  inter- 
est thereon  required  by  the  terms  of  the  agreement ; ' '  and  denies 
that  plaintiff  "has  performed,  or  offered  to  perform,  the  condi- 
tions on  her  part  of  the  contract  to  be  done  or  performed." 
The  answer  further  alleges  that  it  was  the  duty  of  plaintiff  to 
pay  the  taxes  on  the  premises,  but  she  failed  to  do  so,  and  that 
he  has  paid  them ;  but  fails  to  give  the  amount  paid  by  him,  and 
fails  to  ask  any  relief  in  that  behalf.  It  is  also  alleged  that,  at 
the  time  of  the  sale,  it  was  agreed  that  plaintiff  should  erect  a 
building  on  the  real  estate  in  question,  to  be  used  for  the  purposes 
of  a  laundry,  and  that  the  same  was  to  have  been  constructed 
prior  to  the  execution  of  the  deed ;  but  that  plaintiff  has  failed 
to  construct  the  building,  and  that  thereby  defendant  is  dis- 
charged from  the  contract.  To  this  answer  a  demurrer  was  inter- 
posed by  plaintiff'  upon  the  ground  that  the  answer  did  not  state 
fads  sufficient  to  constitute  a  defense.  The  demurrer  was  sus- 
tained.   Defendant  appeals. 

Does  the  answer  state  a  defense?  It  can  not  be  claimed  that, 
by  the  terms  of  the  contract,  the  time  of  payment  is  made  an 
essential  ingredient.  Therefore,  it  is  doubtful  if  the  allegation 
of  the  waiver  or  extension  as  alleged  in  the  petition  was  a  nee- 


Sec.  1.]  HANSON  v.  leiiman.  597 

essary  allegation.  But  assuming  that  it  was,  the  denial  is  insuffi- 
cient. The  answer  does  not  deny  the  extension,  but  denies  grant- 
ing it  at  the  time  alleged.  In  this  the  answer  is  ambiguous,  and 
not  sufficient.  Harden  v.  Atchinson  &  N.  R.  Co.,  4  Neb.,  521; 
]\raxw.  PI.  &  Pr.  (4th  Ed.),  126.  The  same  is  true  of  the  denial 
of  the  performance  of  the  contract  on  the  part  of  the  plaintiff. 
None  of  the  allegations  of  the  petition  are  denied,  but  rather 
the  conclusion  to  be  drawn  from  them. 

x\s  to  the  payment  of  taxes.  It  is  apparent  that  nothing  was 
claimed,  or  the  facts  would  have  been  stated;  and  as  the  amounts 
paid,  if  any,  were  not  alleged,  no  defense  could  be  based  thereon. 

The  last  defense  pleaded  is  that  it  was  agreed  that  plaintiff 
should  erect  a  building  on  the  premises.  There  is  nothing 
alleged  which  would  tend  to  show  that  it  was  a  matter  of  any 
importance  to  defendant  whether  plaintiff'  built  a  house  on  the 
premises  or  not.    The  facts  alleged  constitute  no  defense. 

The  ruling  of  the  district  court  in  sustaining  the  demurrer 
was  right,  and  is  therefore 

Affirmed. 


JOINT  SCHOOL  DISTRICT  v.  LYFORD. 

27  Wis.,  r,06.     [1871.] 

Lyon,  J.  The  plaintiff,  suing  by  the  name  of  ''Joint  School 
District  No.  One,  comprising  the  city  of  Prescott,  and  parts  of 
the  towns  of  Oak  Grove  and  Clifton,"  brought  this  action  on  a 
bond  in  the  sum  of  five  thousand  and  six  hundred  dollars,  exe- 
cuted by  the  defendants,  or  purporting  to  be  executed  by  them, 
to  "Joint  School  District  No.  One  of  the  city  of  Prescott,  and 
the  towns  of  Oak  Grove  and  Clifton, ' '  conditioned  for  the  faith- 
ful discharge,  by  the  defendant  Beardsley,  of  the  duties  of  his 
office  as  treasurer  of  such  district.  A  copy  of  the  bond  is  set 
forth  in  the  complaint,  and  it  seems  to  be  in  proper  form.  The 
breach  assigned  is,  that  Beardsley  was  afterwards  removed  from 
such  office  pursuant  to  law,  by  the  county  judge  of  Pierce  county, 
in  which  county  the  district  is  alleged  to  be  situated ;  and  that, 
when  so  removed,  he  had  in  his  hands  $877.97  of  moneys  belong- 


598  THE  ANSWER.  [ChAP.  IV. 

ing  to  the  district,  which  money  he  has  neglected  and  refused 
to  pay  over  to  his  successor  in  office. 

The  defendant  Lyford  demurred  to  the  complaint,  stating  the 
following  grounds  of  objection  thereto:  "First,  that  the  plain- 
tiff had  not  legal  capacity  to  sue ;  second,  that  there  is  a  defect 
of  parties  plaintiff;  third,  that  there  is  a  defect  of  parties 
defendant ;  fourth,  that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action. ' ' 

The  circuit  court  overruled  the  demurrer,,  and  the  defendant 
Lyford  then,  by  leave  of  the  court,  answered  as  follows:  "1st. 
That  the  above  named  plaintiff  is  not  a  corporation  doing  busi- 
ness under  the  laws  of  the  state  of  "Wisconsin,  and  there  is  no 
such  corporation.  2d.  And  for  a  further  answer  the  said 
defendant  denies  that  he  did,  on  the  4th  day  of  September,  1866, 
or  at  any  other  time,  make,  execute  and  deliver  to  the  said  plain- 
tiff his  bond  or  obligation,  or  become  surety  to  the  said  plaintiff 
for  the  payment  of  any  sum  of  money  whatever. ' ' 

Upon  the  issue  thus  made,  the  action  was  tried,  and  resulted 
in  a  judgment  against  the  defendant  Lyford,  from  which  he  has 
appealed  to  this  court.  The  defendant  Beardsley  made  no  appear- 
ance in  the  action,  and  before  trial  he  deceased,  and  his  death 
was  duly  suggested  in  the  record.     *     *     * 

3.  It  is  objected  that  there  is  not  sufficient  evidence  of  the 
execution  of  the  bond  by  Lyford.  I  think  that  its  execution  by 
him  was  not  denied,  so  as  to  put  the  plaintiff  upon  proof  thereof. 
His  answer  does  not  in  terms  deny  the  execution  of  the  bond,  a 
copy  of  which  was  set  out  in  the  complaint.  He  denies  in  the 
answer  that  he  at  any  time  made,  executed,  or  delivered  to  the 
plaintiff  his  bond  or  obligation,  or  became  surety  to  said  plaintiff 
for  the  payment  of  any  sum  of  money  whatever.  On  his  theory 
of  the  case,  which  was  that  the  bond  does  not  run  to  the  plaintiff, 
he  might  make  that  denial,  and  at  the  same  time  have  executed 
the  bond  in  suit.  It  seems  to  me  that  the  statute  requires  a 
positive  denial  of  the  signing  or  execution  of  the  particular 
instrument,  before  the  plaintiff  can  be  put  upon  proof  of  its 
execution.     R.  S.  ch.  137,  Sec.  92.     *     *     * 

Judgmeyit  affirmed. 


Sec.  1.]  HARRIS  V.  shontz.  599 

HARRIS  V.  SHONTZ.  ^ 
1  Mont.,  212.      [1870.] 

Symes,  J.  This  was  an  action  for  damages  for  tHe  diversion 
of  water,  and  asking  for  a  decree  of  title  and  perpetual  injunc- 
tion. Plaintiff  alleged  that  he  was  the  owner  of  certain  mining 
ground  and  a  water  ditch,  which  conveyed  two  hundred  inches 
of  water  to  the  same ;  that  he  had  a  prior  right  to  the  water :  that 
defendants  wrongfully  diverted  the  said  water  to  plaintiff's  dam- 
age $500;  that  defendants  threatened  to  continue  the  diversion, 
which  would  cause  great  and  irreparable  injury  to  plaintiff,  and 
were  unable  to  respond  in  damages. 

Defendants  answered  and  denied  the  ownership  of  the  ditch, 
and  prior  rights  to  the  use  of  the  water;  denied  that  plaintiff' 
had  sustained  damages  in  any  sum;  denied  that  diversion  would 
cause  irreparable  injury.  Further  answered  and  set  up  title  in  W^>a  "*A^a_ 
the  water  by  right  of  appropriation  and  agreement  of  defend- 
ants. 

The  case  was  tried  at  the  November  term,  1869,  and  the  fol- 
lowing verdict  found  for  the  plaintiff',  viz:  "We,  the  jurors,  do 
find  the  plaintiff  entitled  to  one-hundred  and  fifty  inches  of 
water  in  Washington  gulch."  The  court  on  this  verdict  ren-  ^^.v,^^^,^,^^^ 
dered  judgment  for  costs  against  the  defendants,  and  decreed  the  -^^^^^ 
title  to  one-hundred  and  fifty  inches  of  water  in  the  plaintiff, 
and  perpetually  enjoined  the  defendants  from  interfering  there- 
with. 

The  defendant  excepted  to  the  entry  of  judgment  and  decree 
on  the  verdict,  moved  for  a  new  trial,  which  motion  was  over-    «^^  Atu^^^  ' 
ruled,  and  appealed  to  this  court.  -T^jC 

Does  the  verdict  or  finding  of  the  jury  in  this  case  support  the         v  L     ^ 
judgment  and  decree?    The  jury  find  for  the  plaintiff  upon  the  ^^      ^^^^^^ 
material  issue  of  title  to  the  water.    There  is  no  denial  that  the  "^^^  *-^<i-C^J^ 
defendants  did  divert,  continue  to  divert,  and  threatened  to  con- 
tinue to  divert  the  water.    The  paragraph  of  the  answer  purport- 
ing to  deny  the  diversion  is  as  follows,  to-wit :    ' '  Denies  that  the 
said  defendants  and  their  servants  and  employees  did  on  said  1st 
day  of  April,  1869,  and  ever  since  said  date,  have  continued 
wrongfully,  and  illegally,  to  divert  the  water  of  said  Washington 
creek  bv  means  of  a  certain  ditch  owned  and  possessed  by  defend- 


GOO  THE  ANSWER.  fClIAP.  IV. 

ants."  Denying  that  they  diverted  it  wrongfully  and  illegally 
is  pregnant  with  the  admission  that  they  did  in  fact  commit  the 
act  of  diversion.  The  allegations  of  irreparable  injury  and 
insolvency  were  not  necessary  to  be  found  by  the  jury.  The 
plaintiff  set  up  a  title  to  the  water,  and  asks  that  title  be  decreed 
to  him;  and  alleged  that  defendants  diverted,  and  threatened  to 
divert  the  same.  The  trespass  complained  of,  the  diversion  of 
the  water,  the  continuing  and  threatened  continuance  thereof, 
not  being  denied,  the  admissions  in  the  pleadings  and  the  find- 
ings of  the  jury  will  support  the  judgment  and  decree.  The 
title  to  the  water  being  found  in  the  plaintiff,  and  the  defend- 
ant's admission  that  they  threatened  to  continue  to  divert  it, 
entitled  the  plaintiff  to  a  decree  of  title  and  injunction. 

The  defendants  objected  to  the  judgment  for  costs  being 
entered  because  the  plaintiff  did  not  recover  $50  or  more  dam- 
ages. The  gist  of  the  action  appears  to  be  the  title,  or  prior  right 
to  the  use  of  the  water ;  the  diversion  is  admitted  by  the  defend- 
ants, but  they  deny  the  title  to  the  water ;  upon  this  issue  alone 
the  cause  was  tried,  and  the  plaintiff's  recovery  of  the  water 
entitles  him  to  costs. 

Order  of  the  court  overruling  motion  for  new  trial  is  affirmed. 

Exceptions  overruled. 


BOBBINS  V.  LINCOLN. 

12  Wis.,  1.     [I860.] 

The  complaint  of  Lincoln,  the  plaintiff  below,  alleged  that  the 
defendant,  Bobbins,  was  indebted  to  him  for  money  laid  out  and 
expended  by  him,  and  for  work  done  and  performed  by  him  and 
his  wife,  for  the  defendant,  at  his  request,  and  for  a  promissory 
note  executed  by  one  Francis  Massing,  payable  to  the  plaintiff, 
and  by  him  sold  and  delivered,  to  the  defendant,  at  his  request, 
the  several  items  of  which  indebtedness  were  as  follows : 

(Here  follow  various  items  of  cash  alleged  to  have  been  paid 
out  by  the  plaintiff  for  the  defendant,  amounting  to  $2,204.49, 
and  also  the  following:) 


Sec.  1.]  BOBBINS  v.  Lincoln.  601 

1858,  Nov.  18,  To  Massing 's  note  sold  you $676.08 

Interest  on  same 10.00 

1859,  Jan.  1,  To  one  year's  work  of  self 400.00 

2  months'  work  of  plaintiff's  wife 16.00 

The  complaint  further  stated  that  the  sum  of  $2,825.95  of  the 
said  indebtedness  had  been  paid,  and  that  there  was  due  from 
the  defendant  to  the  plaintiff  the  sum  of  $480.62,  with  interest, 
for  which  the  plaintiff  demanded  judgment. 

The  answer  of  the  defendant  denied  that  the  plaintiff  had 
laid  out  or  expended  any  money  for  him,  except  such  sums  as  V^.^^  <X:  >o^ 
had  been  delivered  by  him  to  the  plaintiff  for  that  purpose,  and  OvA^..^>rwjisr^^AJ^ 
denied  that  he  was  indebted  to  the  plaintiff  in  any  sum  therefor.  \,-^  x>l>Jl»j^ 
The  defendant  also  denied  that  he  was  indebted  to  the  plaintiff  vj>-^^  . 

for  one  year's  services,  performed  by  him  as  stated  in  the  com-  J"^^.  . 
plaint,  but,  on  the  contrary,  alleged,  that  during  a  portion  of  ^^-'"^"'^-'^'"^ 
the  time  when  said  services  were  performed,  to-wit,  from  Janu-  <>-*'''^'^' 
ary,  1858,  to  the  6th  of  July,  1858,  the  plaintiff  was  in  the  em- 
ployment of  the  firm  of  "Tweed  &  Robbins"  (composed  of  John 
P.  Tweed  and  the  defendant),  and  not  of  the  defendant  in- 
dividually; that  the  plaintiff  was  never  in  the  employment  of 
the  defendant,  individually  except  for  about  six  months,  com- 
mencing on  the  6th  of  July,  1858,  and  during  that  time  was,  by 
agreement,  to  be  paid  at  the  rate  of  $300  per  year;  that  the 
defendant  was  not  indebted  for  the  services  of  the  plaintiff's 
wife,  but  that  the  same  had  been  paid  for  by  her  board  at  the 
house  of  the  defendant;  that  the  defendant  had  no  knowledge 
or  information,  sufficient  to  form  a  belief,  whether  the  plaintiff 
had  laid  out  and  expended  all  the  sums  of  money  delivered  by 
the  defendant  to  him  for  that  purpose  as  aforesaid,  and,  there- 
fore, had  no  knowledge  or  information  sufficient  to  form  a  be- 
lief, whether  he  was  upon  a  final  accounting,  indebted  to  the 
plaintiff'  in  any  sum  whatever. 

By  the  Court,  Paine,  J.  *  *  *  The  allegation  in  the  com- 
plaint, of  the  sale  to  the  defendant  of  Massing 's  note,  is  not 
denied  at  all.  The  rendition  of  the  services  by  the  plaintiff's 
wife  is  not  denied,  but  the  answer  avers  that  they  were  paid 
for  in  a  particular  manner,  and  to  establish  that,  the  burden  of 
proof  was  on  the  defendant.  It  is  evident,  therefore,  that  the 
answer,  so  far,  put  in  issue  only  the  question  whether  the  plain- 
tiff was  to  have  $400  or  $300  per  year  for  his  services ;  whether 
for  half  the  time  he  worked  for  Tweed  &  Robbins ;  and  whether 


602  THE  ANSWEE.  f  ChAP.  IV. 

the  wife's  services  had  been  paid  for.  Do  the  remaining  allega- 
tions give  it  a  different  effect?  They  relate  to  the  sums  averred 
in  the  complaint  to  have  been  paid  out  by  the  plaintiff  for  the 
use  of  the  defendant.  The  first  part  of  the  answer  denies  that 
the  plaintiff  had  laid  out  or  expended  any  money  for  the  de- 
fendant at  his  request,  "except  such  sums  as  had  been  deliv- 
ered by  him  to  the  plaintiff,  while  the  plaintiff  was  in  his  em- 
ploy, for  that  purpose."  This  is  clearly  no  denial  that  the 
plaintiff'  paid  out  the  money,  but  on  the  contrary  impliedly  ad- 
mits it.  It  avoids  the  liability,  by  avering  that  the  money  paid 
out  had  been  in  fact  furnished  by  the  defendant  for  that  pur- 
pose, and  is  like  the  answer  in  Hamilton  v.  Hough,  13  How.  Pr. 
E.  14,  where  the  answer  denied  that  the  plaintiff  had  sold  the 
defendants  any  goods  that  had  not  been  paid  for,  which  the 
court  held  not  to  amount  to  a  denial. 

The  latter  part  of  the  denial  avers  that  the  defendant  had  no 
knowledge  or  information  suffix^ient  to  form  a  belief,  whether  the 
plaintiff  "had  laid  out  and  expended  all  the  sums  of  money 
delivered  by  the  defendant  to  the  plaintiff  for  that  purpose  as 
aforesaid,  and,  therefore,  had  no  knowledge  or  information  suf- 
ficient to  form  a  belief  whether  he  was,  or  on  a  final  accounting 
with  the  plaintiff  would  be,  indebted  to  the  plaintiff  in  any  sum 
whatever."  The  latter  part  of  this  clause  relates  only  to  the 
legal  conclusion  of  indebtedness,  and  if  it  contained  a  positive 
denial  of  indebtedness  without  denying  the  facts  alleged,  out  of 
which  the  indebtedness  would  arise,  it  would  amount  to  nothing. 
Drake  v.  Cockroft,  10  How.  Pr.  R.  377.  Its  effect  depends, 
therefore,  on  the  first  clause,  and  it  is  very  evident  that  if  this 
referred  expressly  to  the  allegations  of  the  complaint,  it  would 
be  objectionable  in  point  of  form.  The  complaint  avers  that 
the  plaintiff  paid  out  for  the  defendant  divers  sums  of  money, 
giving  a  great  number  of  items.  Suppose  the  answer  should 
contain  a  specific  denial  that  all  those  sums  were  paid  out.  Such 
a  denial  is  not  inconsistent  with  a  perfect  knowledge  that  all  but 
one  had  been  paid  out.  A  denial  in  the  precise  language  of 
the  complaint  is  not  sufficient ;  it  must  be  of  the  substance  of 
the  allegation.  And  the  rule  as  to  answers  in  equity  has  been 
held  applicable  to  answers  under  the  Code.  And  under  that 
rule,  "it  is  not  enough  when  a  charge  is  made  with  all  the  cir- 
cumstances of  time  and  place,  etc.,  to  deny  such  charge  gen- 
erally in  the  words  thereof,  but  in  all  cases  where  the  charge 


Sec.  1.]  ROBBiNS  v.  Lincoln.  603 

embraces  several  particulars,  tJie  answer  sJiould  be  in  the  dis- 
junctive, denying  each  particular,  or  admitting  some  and  deny- 
ing others  according  to  the  fact."  Van  Santvoord  PI.,  426.  It 
seems  very  obvious  that  to  a  complaint  for  goods  sold  and  de- 
livered, a  denial  that  the  plaintiff  has  sold  and  delivered  all  the 
goods  mentioned,  would  be  insufficient.  But  the  denial  in  this 
answer  does  not  even  amount  to  that.  As  before  observed,  the 
first  part  of  it  is  simply  a  denial  that  the  plaintiff  had  paid  out 
any  moneys,  except  such  as  the  defendant  had  furnished  him 
for  the  purpose.  This  implies  that  he  had  furnished  the  plain- 
tiff moneys  to  be  paid  out,  but  contains  no  averment  as  to 
how  much.  The  last  part  of  the  answer  is  a  denial  of  knowledge 
or  information  sufficient  to  form  a  belief,  not  as  to  whether  the 
plaintiff  had  paid  oat  all  the  moneys  averred  in  the  complaint, 
but  all  which  the  "defendant  had  furnished  as  aforesaid."  He 
might  have  furnished  more  than  the  complaint  claimed  to  have 
been  paid  out,  and  then  the  answer  would  have  been  consistent 
with  a  perfect  knowledge  that  the  plaintiff'  had  paid  all  he  al- 
leged. It  seems  clear,  therefore,  that  an  answer  averring,  by 
inference,  that  the  defendant  had  furnishd  the  plaintiff  money 
to  pay  out,  and  then  denying  knowledge  or  information  as  to 
Avhether  he  had  paid  it  all  out,  cannot  be  construed  into  a  denial 
of  knoAvledge  that  the  plaintiff  had  paid  out  certain  sums  men- 
tioned in  the  complaint.  I  think,  therefore,  that,  as  a  matter  of 
strict  pleading,  the  allegations  in  the  complaint  as  to  the  paying 
out  of  money  were  not  sufficiently  denied  to  put  the  plaintiff 
upon  proofs.     *     *     * 

Judgment  affirmed. 


WEST  V.  THE  AMERICAN  EXCHANGE  BANK. 

44  Barb.  (N.  Y.)  175.     [1865.] 

Appeal  from  a  judgment  entered  at  the  circuit  on  a  trial 
before  the  court  without  a  jury.  The  complaint  alleged  that  the 
plaintiff,  on  the  29th  day  of  May,  1861,  was  the  owner  of  a 
certain  promissory  note;  that  on  that  day,  he  employed  the 
defendant  to  collect  the  same;  and  that  the  defendant  did  col- 
lect it,  but  had  failed  to  pay  over  the  proceeds,  although  often 


G04  THE  ANSWER.  [ChAP.  IV. 

■^  ^  <yA^^  requested  to  do  so.  The  answer  denied  none  of  these  allegations, 
'•'''*""*^'^  \  but  set  up  new  matter,  viz.:  that  the  defendant  was  collecting 
'^*''^'''~*^/)  agent  in  the  city  of  New  York  for  the  Medina  Bank,  and  as 
'T^^  /  such  received  and  held  the  note  in  question  until  its  maturity, 
when  the  proceeds  were  received  by  it  as  such  agent.  And  that 
JL.  ft-(^vv  1  afterwards,  and  before  the  1st  of  July,  1861,  it  paid  the  same 
^A/«^  to  the  said  Medina  Bank. 

>^  '*-'«j(*--  The  court  found  the  following  facts:  That  on  the  29th  day 
;Sjj).5>«s^  of  May,  1861,  the  plaintiff  was  the  owner  of  a  note  made  by 
^^^  trv  one  West,  and  payable  in  the  city  of  New  York,  for  $535,  to 
-'^■*^  "^  mature  on  the  1st  and  4th  of  June.  That  on  the  first  day  named, 
^ ,  "^  *^»A*-tA  -^^  deposited  the  note  for  collection,  in  the  Medina  Bank,  Or- 
cxv>rt.Vjb^>»jjgQjig  county,  indorsed  in  blank.  That,  at  this  time,  the  Medina 
Y*^^'^*-*''*'^ '  Bank  was  indebted  to  the  defendant,  for  over  drafts,  to  an 
amount  largely  exceeding  the  amount  of  said  note.  That  on 
.  the  day  named  and  being  so  indebted,  the  Medina  Bank  for- 

warded the  note  to  the  defendant,  with  directions,  "To  collect 
said  note,  and  credit  said  Medina  Bank  with  the  proceeds." 
That  on  the  4th  day  of  June  the  note  was  collected,  and  the 
proceeds  credited  in  the  books  of  the  American  Exchange  Bank 
to  the  account  of  the  Medina  Bank,  which  account  then  showed 
the  indebtedness  of  the  latter  bank  to  the  defendant  to  be 
$3,273.37.  That  the  Medina  Bank  failed  and  suspended  busi- 
ness, on  the  evening  of  the  4th  of  June,  1861,  and  on  the  7th, 
the  defendant  was  notified  of  said  failure.  That  after  the  29th 
day  of  May,  the  defendant  continued  to  pay  the  drafts  of  the 
Medina  Bank.  That  the  defendant,  at  the  time  of  receiving  the 
note,  from  the  Medina  Bank,  and  until  the  time  of  collecting 
and  crediting  the  proceeds  thereof,  as  above  stated,  had  no 
notice  or  knowledge  that  the  note  belonged  to  the  plaintiff,  or 
that  the  same  was  not  the  property  of  the  Medina  Bank,  and 
the  proceeds  thereof  were  credited  by  the  defendant  to  the  Medina 
Bank  in  good  faith,  in  the  ordinary  course  of  business  between 
them.  That  prior  to  the  said  29th  day  of  May,  1861,  it  had 
been  agreed  between  the  president  of  the  Medina  Bank  and  the 
defendant  that  all  paper  sent  for  collection  by  said  Medina 
Bank  should  be  held  by  the  defendant  as  collateral  security  for 
any  balance  of  account  owing  by  the  latter  to  the  defendant. 
That  on  or  about  the  1st  day  of  March,  1863,  the  plaintiff  de- 
manded the  proceeds  of  said  note,  of  the  defendant,  and  the 
latter  refused  to  pay  the  same  to  him. 


Sec.  1.] 


WEST   V.   THE  AM.  EX.   BANK.  605 


And  the  Judge  found  as  a  conclusion  of  law,  that  the  de- 
fendant was  not  indebted  to  the  plaintiff  for  the  proceeds  of 
said  note,  and  that  he  was  entitled  to  judgment  dismissing  the 
complaint  with  costs.    From  this  judgment  the  plaintiff  appealed. 
By  the  Court,  James  C.  Smith,  J.     Upon  the  facts  found  by 
the  court  at  a  special  term,  the  defendants  cannot  be  regarded  as 
purchasers  or  holders  for  value,  of  the  note  described  in  the 
complaint,  or  of  its  proceeds,  according  to  the  rule  prevailing  in 
this  state,  so  as  to  exclude  the  claims  of  the  plaintiff',  who  is  the 
real   0A\Tier.     *     *     *     The   defendants  also   contend  that  the 
plaintiff  cannot  maintain  this  action,  for  the  reason  that  their 
bank  was  the  agent  of  the  IMedina  Bank  in  respect  to  the  col- 
lection of  the  note,  and  owed  no  duty  to  the  plaintiff.    But  the 
pleadings  admit  the  reverse  of  this  to  be  the  fact.    The  complaint 
expressly  alleges  that  "the  plaintiff  employed  the  defendant  to 
collect  the  note;  which  the  defendant  undertook  to  do";  and 
this  allegation  is  not  denied  by  the  answer.    The  most  that  can 
be  claimed  by  the   defendants  is  that  the   answer  contains  a 
version  of  the  transaction  which  is  in  some  respects  inconsistent 
with  the  allegation  in  the  complaint ;  but  that  does  not  amount 
to  a  denial.     (Wood  v.  Whiting,  21  Barb.  190).     It  has  been 
said  that  an  allegation  which,  if  uncontroverted,  is  to  be  taken 
as  true,  should  be  direct  and  positive ;  one  which  at  most  merely 
implies  a  fact  or  justifies  an  inference  that  such  is  or  will  be 
claimed  to  be  the  fact  should  not  be  construed  as  a  material 
allegation.      (Per  Bosworth,  J.  Oechs  v.  Cook,  3  Duer,  161). 
The  correctness  of  these  observations  when  applied  to  an  affirma- 
tive allegation,  or  an  allegation  of  new  matter,  can  not  be  ques- 
tioned.   The  like  remarks  are  equally  applicable  to  an  allegation 
in   an   answer  by   which  it   is   attempted  to   deny   a  material 
allegation  in  a  complaint,  or,  in  other  words,  "to  join  issue."    A 
denial  may  be  general  or  specific,  at  the  option  of  the  pleader, 
but  in  either  case  it  must  be  direct  and  unequivocal.     If  it 
merely  implies  that  the  allegation  is  controverted,  or  justifies 
an  inference  that  such  is,  or  will  be  claimed  to  be  its  effect,  it 
will  not  be  construed  as  a  denial.    Tested  by  this  rule,  the  answer 
before  us  does  not  deny  the  allegation  referred  to,  contained  in 
the  complaint,  and  that  allegation  being  uncontroverted  is  to 
be  taken  as  true,  for  the  purpose  of  the  action.     This  being  the 
requirement  of  the  statute,  (Code,  §  168),  the  fact  thus  admitted 
by  the  pleadings  can  not  be  contradicted  or  varied  by  evidence; 


606  THE  ANSWER.  [ChAP.  IV. 

and  as  the  judgment  of  the  court  below  is  contrary  to  such 
fact,  it  is  erroneous. 

The  judgment  wil  be  reversed,  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

Ordered  accordingly. 


LEFFINGWELL  v.  GRIFFING. 
31  Cal  232.     [1866.] 

Plaintiff  recovered  judgment  in  the  court  below,  and  defend- 
ant appealed  from  the  judgment  and  from  an  order  denying  a 
new  trial. 

The  other  facts  are  stated  in  the  opinion  of  the  Court. 

By  the  Court,  Shafter,  J.  The  complaint  is  in  two  counts. 
The  first  count  alleges  that  the  defendant  promised  the  plaintiff 
if  he  would  find  a  purchaser  for  certain  real  estate  in  San 
Francisco,  that  the  defendant  would  pay  the  plaintiff  for  his 
services  the  excess  of  the  purchase  money  over  and  above  the 
sum  of  sixty-two  thousand  dollars;  that  the  plaintiff  procured 
F.  H.  Waterman  to  buy  at  sixty-five  thousand  dollars,  which 
sum  the  defendant  had  actually  received. 

The  second  count  is  for  three  thousand  dollars,  as  so  much 
money  had  and  received  by  the  defendant  to  the  plaintiff's 
use.  No  allusion  is  made  to  Watermna  or  the  purchase  money 
paid  by  him,  or  to  the  sixty-five  thousand  dollars,  or  to  any 
feature  of  the  special  contract.  The  count  is,  in  short,  for 
money  had  and  received,  in  the  most  general  form.  No  bill  of 
particulars  was  asked  for,  nor  was  any  filed. 

Issue  was  well  taken  on  the  first  count,  but  to  the  second 
count,  there  was  no  response.  The  only  passage  in  the  answer 
that  can  be  claimed  to  have  any  reference  to  that  count  is  this: 
"He  denies  that  he  received  three  thousand  dollars  in  gold  coin, 
parcel  of  the  sixty-five  thousand  dollars,  to  and  for  the  use  of 
the  plaintiff."  This  denial  is  bad  for  two  reasons:  First,  The 
count  does  not  charge  that  the  three  thousand  dollars  sued  for 
was  parcel  of  the  sixty-five  thousand  dollars,  or  of  any  other 
sum,  but  three  thousand  dollars,  absolutely  and  without  clog. 
The  traverse   is,   therefore,   pregnant  with   an   admission  that 


Sec.  1.]  LEFFINGWELL    V.    GRIFFIXG.  607 

three  thousand  dollars  had  been  received  as  charged — that  is, 
three  thousand  dollars  disconnected  from  the  circumstances 
named  in  the  denial,  and  spoiling  its  pith.  Second,  the  traverse 
is  vitiated  for  another  but  kindred  reason.  The  denial  is  that 
the  three  thousand  dollars  was  received  in  gold  coin.  That  in- 
volves an  admission  that  three  thousand  dollars  was  received  in 
either  one  of  the  two  other  forms  of  lawful  money,  and  therein 
it  denies  what  was  non-essential  and  admits  all  that  was  essential 
to  a  recovery. 

Judgment  affirmed. 


LOEB  V.  WEIS. 

64  Ind.  285.      [1878.] 

Perkins,  J.  John  M.  Weis  &  Co.  were  a  mercantile  firm, 
largely  indebted.  Said  firm  sold  and  transferred  to  Elias  Weis 
their  entire  stock  of  goods,  notes,  and  accounts;  and,  in  consid- 
eration of  such  sale  and  delivery,  said  Elias  Weis  promised  the 
said  John  M.  Weis  &.  Co.,  by  their  firm  name,  to  pay  to  the 
creditors  of  said  firm  all  claims  and  demands  existing  against  it. 

Said  Weis  &  Co.  owed  Loeb  et  al,  the  appellants,  the  sum  of 
three  hundred  and  thirty-seven  dollars  and  eighty-five  cents, 
which  they  demanded  of  Elias  Weis,  and  which  he  failed  to 
pay,  etc. 

This  suit  is  by  said  appellants,  against  said  appellee,  on  his 
promise  to  Weis  &  Co.  to  pay  their  creditors.  The  complaint 
states  a  cause  of  action.  Miller  v.  Billingsly,  41  Ind.  489,  and 
cases  cited;  Haggerty  v.  Johnston,  48  Ind.  41;  See  Crim  v. 
Fitch,  53  Ind.  214. 

Answer  in  three  paragraphs:  1.  General  denial;  2.  Pay- 
ment by  Weis  &  Co.,  the  orignal  debtors;  and,  3.  "That  the 
goods,  notes,  and  accounts,  etc.,  alleged  in  the  complaint  to 
have  been  sold  by  said  John  ]M.  Weis  &  Co.  to  defendant,  were 
transferred  and  delivered  to  him  to  be  disposed  of  as  follows,  to- 
wit:  for  the  purpose  of  being  appropriated  by  defendant  to 
the  payment,  so  far  as  they  might  go,  of  the  debts  which  had 
been  contracted  by  a  prior  firm,  composed  of  said  John  M.  Weis 
and  Horace  Case,  one  William  R.  Kennedy  having  succeeded 
to  the  rights  and  liabilities  of  said  Case,  as  a  member  of  the 


608  THE  ANSWER.  [ChAP.  IV. 

firm  of  John  M.  Weis  &  Co.,  and  defendant  having  become 
bound  in  the  sum  of  one  thousand  dollars  to  save  said  Case 
harmless,  and  for  the  further  purpose  of  satisfying  two  notes 
held  by  defendant  upon  the  firm  of  John  M.  Weis  &  Co.,  amount- 
ing to  the  sum  of  five  hundred  dollars,  which  said  goods  and 
merchandise,  notes,  etc.,  amounting  nominally  to  about  twenty- 
one  hundred  dollars,  were  to  be  converted  into  money  by  de- 
fendant  as  expeditiously  as  practicable  and  in  such  manner  as 
^^^YxWtthe  might  deem  proper,  and  the  proceeds  applied,  first,  in  satis- 

i  ■  faction  of  the  debts  so  contracted  by  the  said  Weis  &  Case;  see- 

V/J^  _  ondly,  to  the  satisfaction  of  said  notes  so  held  by  him  upon 

said  Weis  &  Kennedy,  as  hereinbefore  stated;  and,  thirdly,  to 

^  ^_      ^_A    the  satisfaction  of  the  indebtedness  of  said  firm  of  John  M.  Weis 

^^^__^^^_^^       &  Co.,  so  far  as  the  surplus  would  go ;  and  defendant  avers,  that 

^.     ^     0      he  sold  said  goods,  etc.,  by  retail,   and  at  auction,  with  the 

^^^^^^^^^"^^     knowledge  and  consent  of  the  said  John  M.  Weis  &  Co.,  and  that 

^jg^j^Sh^  ^  ^^  collected  said  notes  and  accounts,  so  far  as  the  same  could 
^^^>"G>-  ^^  collected,  and  that  he  applied  the  proceeds  of  such  collections 
to  the  payment  of  the  debts  of  said  Weis  &  Case,  which  amounted 
to  the  sum  of  sixteen  hundred  dollars.  Defendant  further  says, 
that  the  amount  of  the  notes  and  accounts  uncollectible,  as  afore- 
said, is  four  hundred  and  eighty-two  dollars ;  that  he  has  already 
paid  upon  the  indebtedness,  against  which  said  Case  was  indemni- 
fied by  him,  as  aforesaid,  seven  hundred  and  fifty  dollars  more 
j^jj^.than  the  amount  realized  by  him  from  the  sales  and  collections 
aforesaid,  leaving  the  two  notes  held  by  him,  as  aforesaid,  wholly 

.j^A^a-    ^^^^f^JO  unsatisfied."    Wherefore,  etc. 

~*  ^"^  \5Vvww.     Demurrer  to  the  third  paragraph  of  answer  for  want  of  facts 

^Va/va,«_«.       overruled,  and  exceptions  entered. 

P«*^    O  Vc .        We  briefly  notice  the  question  presented. 

e<«,/vv>yv.^  The  court  did  not  err  in  overruling  the  demurrer  to  the  third 

,^,,,jj.^,_f^xK .  paragraph  of  answer.  The  suit  was  upon  an  alleged  promise  to 
do  a  certain  thing.  On  proof  of  substantially  such  a  promise, 
the  plaintiff's  right  of  recovery  depended. 

The  third  paragraph  of  the  answer  averred  that  the  promise, 
on  the  occasion  alleged  in  the  complaint,  was  entirely  different 
in  its  terms  from  what  the  complaint  alleged  it  to  be,  setting 
out  those  terms.  This  w^as  an  argumentative  denial  of  the 
promise  alleged  in  the  complaint.  The  matter  alleged  could 
have  been  given  in  evidence,  under  the  general  denial.  Still  the 
paragraph  of  the  answer  contamed  facts  constituting  a  defence" 


Sec.  1.]  LOEB  V.  weis.  609 

to  the  action;  and,  while  the  party  mi.^ht  have  been  permitted 
to  give  them  in  evidence  under  the  general  denial,  which  was 
pleaded,  yet  he  had  a  right  to  plead  the  facta  spppially  anrl  hav- 
ing done  so,  it  was  not  error  in  the  court  below  tn  ovprrnlp  a. 
demurrer  to  such  special  paragraph.  Such  is  the  settled  law 
oFthis  State.  ~ 

What  is  said  by  Judge  Howk,  in  Morris  v.  Thomas,  57  Ind. 
316,  is  not  in  conflict  with  our  decision  on  this  point.  He  says 
in  that  case,  that,  "An  argumentative  denial  is  seldom  'good,' 
in  pleading,  for  any  purpose ' ' ;  but  the  case  does  not  decide  that 
an  argumentative  denial  may  not,  in  any  case,  contain  facts 
constituting  a  defence  to  an  action.     *     *     * 

The  judgment  is  affirmed,  with  costs. 


V 


*^ 


PHILLIPS  V.  HAGART. 

113  Cal.  5o3.      [1896.] 

Garoutte,  J.  This  action  involves  the  right  of  possession  to 
a  certain  tract  of  land,  and  the  complaint  is  in  the  usual  and  or- 
dinary form  for  such  cases.  The  appeal  presents  but  few  ques- 
tions for  the  court's  consideration. 

One  Morrison  was  the  owner  of  the  land.  While  such  owner, 
a  mortgage  resting  upon  it  was  foreclosed,  and  the  defendant, 
Hagart,  became  the  purchaser  at  the  sale  under  the  foreclosure 
proceedings.  Thereafter,  and  within  the  time  allowed  for  re- 
demption, Morrison  transferred  the  property  by  deed  to  these 
plaintiffs,  who  at  once  took  steps  to  redeem  from  the  sheriff's 
sale.  Notwithstanding  the  acts  of  plaintiffs  in  attempting  to 
redeem,  the  sheriff  refused  to  issue  a  certificate  of  redemption, 
and,  in  due  course,  gave  a  deed  of  the  property  to  the  defendant, 
as  a  purchaser  at  the  sale.  Defendant  relies  upon  this  deed  for 
title,  while  plaintiff  asserts  title  by  reason  of  their  deed  from 
Morrison,  coupled  with  the  claim  that  the  acts  performed  by 
them  looking  towards  a  redemption  were  sufficient  in  law  to  ac- 
complish that  result. 

As  already  suggested,  the  complaint  was  in  the  simple  and 
ordinary  form  as  for  an  action  in  ejectment.  Defendant,  by 
answer,  denied  the  allegations  of  the  complaint,  and  set  out  his 
39 


610  THE  ANSWER.  [CilAP.  IV. 

title  in  detail,  consistinsr  of  the  sheriff's  deed  and  the  proceed- 
ings upon  which  it  was  based.  Plaintiffs  answered  defendant's 
pleading  by  denials.  It  is  now  claimed  by  defendant  that  the 
affirmative  matters  set  out  in  his  answer  constituted  a  cross 
complaint,  and  that  certain  allegations  thereof  must  be  deemed 
to  be  true  by  reason  of  insufficient  denials  thereto.  Upon  the 
insufficiency  of  these  denials,  we  will  not  dwell,  for  the  con- 
tention seems  to  be  immaterial.    The  affirmative  matters  set  out 


by  defendant  in  no  sense  constituted  a  cross  complaint,  and  no 

"denial  of  them  was  necessary.     A  recital  by  defendant  of  his 

title  was  no  more  than  a  denial  of  plaintiff' 's  title,  and  opened 

the  door  no  wider  for  the  admission  of  evidence.     "Whatever 

defendant  was  entitled  to  prove  under  his  pleading  as  he  framed 

it,  he  was  entitled  to  prove  under  a  general  denial.    An  allega-, 

tion  of  title  in  himself,  in  an  action  of  ejectment,  by  defendant^ 

ig^but  a  general  denial  in  an  argumentative  form.    Marshall  v. 

Shafter,  32  Cal.  192.    See  Cooper  v.  Miller,  (Cal.)  45  Pac.  325. 
*     *     » 

Judgment  affirmed. 


LEWIS  v.  COULTER. 

10  Ohio  St.  4.52.     [1859.] 

The  plaintiff  in  error,  defendant  below,  filed  an  answer  to 
the  petition  of  the  plaintiff  below,  in  these  words: 
{>jk>^.<)^js,«*A^^     ''The  said  defendant  denies  all  the  material  allegations  of 

- --^^-ii^jv^^Kik   said  plaintiff  in  his  said  petition." 

^■y^^f^^'^  ^         To  this,  the  plaintiff  below,  demurred,  and  assigned  for  cause 
/*-  -  '^^^^'"^      that  the  same  did  not  state  facts  sufficient  to  constitute  a  de- 

^j"^^*^*^  '^  fence  to  the  action.  The  court  below  sustained  the  demurrer, 
r„jL-^ . -iX^^o  ^jj(j  the  defendant  excepted,  but  thereupon  took  leave  to  file 
^a/vaV*--""'^  an  amended  answer,  which  he  did,  and  in  which  he  made  his 
^  \j3-  ^-^  denials  more  specific  and  certain.     On  the  issue  thus  joined 

L  ^^»-«»^-,Vv<  there  was  a  trial,  and  the  plaintiff  below  had  a  verdict  and 
3>v«v^  ~vx.  ,  \j»  judgment. 

_rNrvj&v  »-»  The  ruling  of  the  court  sustaining  the  demurrer  to  the  first 

_^5[^,^..^,^,j^  5v   answer,  is  assigned  for  error. 
\--»^w-'7  -^y  the  Court.     1.     The  court  below  erred  in  sustaining  the 


Sec.  1.]  LEWIS  v.  coulter.  611 

demurrer.     The  answer,  liberally  construed,  as  required  by  the  ^^^^^^  oj,v>,Jc 
code  (sec.  2),  was  good  on  demurrer.    But,  ^jsso**-*   ^  *^ 

2.  The  defendant  below,  having  filed  an  amended  answer,  *^  ^  « 
and  had,  under  that,  all  the  benefits  he  could  have  derived  trom  ^^^^ 
the  first  answer,  the  error  is  not  such  as  requires  a  reversal  of  the  V''^^-  ca^^xS: 

3.  The  first  answer,  though  good  on  demurrer,  was  not  sutli-  ^^^^^^^  p^ 
ciently  certain  and  specific ;  and,  had  a  motion  been  made  for  ^^^^^.^^^^  ^^^ 
that  purpose,  the  defendant  below  might  have  been  properly  .  w^->a> 
required  to  make  the  same  more  certain  and  specific.  A  pleader  ^7^V\3^  oS 
ought  not  to  be  permitted,  by  the  use  of  the  qualifying  word  ^^^^^^^^j^  f.  ij^ 
"material,"  to  assume  to  himself  the  determination  of  the  ques-  .  ^^  v.  .^ 
tions  as  to  what  facts  are  material,  and  thus  render  a  conviction  ^^^^uJdov.  IajL 
for  perjury,  on  a  willfully  false  verification,  difiicult  or  impos-  ^T^]3j[_l 
sible.  And  where  the  denial  is  general,  it  should  be  not  simply  ^^X^^VC 
of  "all,"  but  "of  each  and  all,"  or  "each  and  every"  of  the 
allegations  referred  to. 

Judgment  affirmed. 


KINGSLEY  V.  GILMAN. 
12  Minn.  515.     [1867.] 

McMillan,  J.    This  is  an  appeal  from  an  order  of  the  district 
court  striking  out  a  portion  of  the  defendant's  answer.     The 
portion  of  the  answer  stricken  out  is  as  follows:    "The  said  de- ^^A  ^fi!)^,    «^ 
fendant  denies  each  and  every  statement  and  averment,  and^vv/^-I^^/^-A^s--.- 
every  part  of  the  same,  in  said  amended  complaint  contained,  ,.,^,.,,c3l./«'''^j^ 
as  therein  stated  or  otherwise,  save  as  herinaf ter  stated,  admitted,  ^  >,  «y^t^Ooa/VAi 
or  qualified."     The  grounds  of  the  motion  to  strike  out  thisjc^^    ^o^n-k-v  *- 
portion  of  the  answer  were  as  follows:    That,  "the  same  is  so  4^^  »-*3cro,.js^ 
indefinite  and  uncertain  that  the  precise  nature  of  the  defence  o.Jl^l>--^*Xm«- 
is  not  apparent,  and  that  the  same  does  not  contain  a  denial VA:  vj>V>#. 
of  each  nor  of  any  allegation  in  the  complaint,  nor  of  any  ^j,^^  <3~^,rs^^j^ 
knowledge  or  information  thereof  sufficient  to  form  a  belief."     ^  vsasS:  p-^ 

The  respondent  interposes  the  objection  that  this  is  not  an  ^^j*^-^  ^-*J'«-e- 
order  involving  the  merits  of  the  action,  or  some  part  thereof,     '^^^^'-^  ^  ^~* 
but  merely  a  question  of  practice  resting  in  the  discretion  of 
the  court,  and  is  not  appealable. 

This  portion  of  the  answer  purports  to  be  a  denial  of  all  the 


g]^2  'iiil^  ANSWEU.  [CUAP.  IV. 

allegations  iu  the  complaint  uot  expressly  admitted.  The  re- 
maining part  of  the  answer  admits  but  a  few  of  the  material 
allegations  of  the  complaint.  If  the  portion  of  the  answer  in 
the  form  of  a  general  denial  is  good,  it  puts  at  issue  all  the  re- 
maining allegations  of  the  complaint  material  to  plaintiff's  right 
to  recover,  and  not  only  compels  the  plaintiif  to  prove  the  is- 
sues on  his  part,  but  permits  the  defendant  to  disprove  them ; 
if  it  is  stricken  out,  the  defendant  is  deprived  of  his  right  to 
disprove  the  allegations,  and  they  are  taken  as  admitted  against 
him  The  order  striking  out,  therefore,  goes  to  the  merits  of 
the  action,  and  is  appealable.     Starbuck  v.  Dunklee,  10  Minn. 

173,   (Gil.  136). 

Upon  the  merits  of  the  motion  we  think  it  should  not  have 

been  granted. 

The  statute  provides  that  the  answer  shall  contain  (1)  a 
denial  of  each  allegation  of  the  complaint  controverted  by  the 
defendant,  or  of  anv  knowledge  or  information  thereof  sufficient 
to  form  a  belief.  Gen.  St.  p.  460,  §79.  The  statute  prescribes 
no  particular  form  of  denial,  nor  does  it  make  any  distinction 
between  general  and  specific  duties,     [denials?] 

The  sufficiency  of  a  general  denial,  where  it  puts  in  issue  the 
substance  of  the  allegations  to  which  it  is  addressed,  cannot  now 
be  questio^ied.  This  form  of  general  denial  has  been  in  general 
use  by  the  profession  since  the  adoption  of  the  Code,  and  has 
been  repeatedly  recognized  and  sustained  by  this  court.  Bond 
V.  Corbet,  2  Minn.  248,  (Gil.  209)  ;  Caldwell  v.  Bruggerman,  4 
Minn.  270,  (Gil.  190) ;  Starbuck  v.  Dunklee,  10  Minn.  173,  (Gil. 
136) ;  Montour  v.  Purdy,  11  Minn.  401,  (Gil.  278). 

The  certainty  required  in  pleading  is  tha.t  the  allegation  must 
be  so  certain  and  explicit  as  to  exclude  ambiguity,  and  make  the 
meaning  of  the  averments  clearly  intelligible.  Could,  PI.  c.  4, 
§24,  p.  180. 

Any  language  in  an  answ^er,  therefore,  which  clearly  indicates 
the  allegations  which  the  pleader  intends  to  controvert,  and  de- 
nies with  certainty  the  substance  of  such  allegations,  is  sufficient. 

If  a  complaint  alleges  a  fact  w^hich  is  qualified  by  a  particular 
intention,  or  by  its  connection  with  other  facts  alleged  in  the 
pleading  there  is  no  reason  why  the  simple  fact  may  not  be 
admitted,  and  the  qualifying  facts  or  circumstances  be  denied; 
nor  do  we  see  any  reason  why,  in  ease  of  an  allegation  embracing 
a  fact  and  a  qualifying  intention,  a  general  denial  of  the  allega- 


gEC,  1,]  KIKGSLEY   V.    OILMAN.  613 

tion,  except  as  afterwards  admitted,  followed  with  an  express 
admission  of  the  simple  fact,  is  not  sufficient  to  put  in  issue  the 
intention  alleged,  and  is  not  sufficiently  definite  and  certain.  If 
the  legal  effect  of  express  statements  or  admissions  is  to  qualifj' 
or  deny  any  of  the  allegations  in  the  complaint,  it  is  no  objection 
to  the  answer  that  such  effect  is  not  expressly  stated  in  the 
answer.  The  answer  in  this  case  purports  to  deny  each  and 
every  allegation  in  the  complaint,  except  as  afterwards  stated, 
admitted,  or  qualified  in  the  answer.  If  there  is  no  ambiguity 
in  what  is  afterwards  stated,  admitted,  or  qualified  in  the  sub- 
sequent portion  of  the  answer,  the  pleading  is  sufficiently  cer- 
tain. The  statements  and  admissions  in  the  answer  are  express 
and  unambiguous,  and  there  can  be  no  reasonable  doubt  as  to 
what  the  pleader  intended  to  state  and  admit. 

We  are  therefore  of  opinion  that  the  answer  is  sufficiently 
definite  and  certain  as  to  the  portions  of  the  complaint  which 
the  pleader  intended  to  controvert. 

The  question  then  remains  whether  the  denial  in  the  answer 
is  sufficient  in  form  to  put  in  issue  the  portions  of  the  com- 
plaint which  it  purports  to  deny.     The  language  of  a  general 
denial,  considered  in  reference  to  the  allegation  it  purports  to 
deny,  may  be  such  as  to  be  a  denial  in  form  only,  and  not  in 
substance.     An  instance  of  this  kind  is  found  in  the  case  of 
Dean  v.  Leonard,  9  Minn.  190,  (Gil.  176),  or  it  may  be  uncer- 
tain, as  in  Starbuck  v.  Dunklee,  10  Minn.  168,  (Gil.  136).    But 
the  case  under  consideration  dift'ers  from  these.    The  defendant 
in  this  case  ' '  denies  each  and  every  statement  and  averment,  and        .    ^^tj_ 
every  part  of  the  same,  in  said  amended  complaint  as  therein  Twi^a^^x^^J'-^ 
stated  or  otherwise."     This,  we  think,  is  a  denial,  in  form  and  o-iQ^^oL-r--  ' 
substance,  of  the  allegations  controverted.    It  would  be  unreason-  \>^^?:)j^  ,  H 
able  to  suppose  that  the  pleader  intended  to  deny  a  portion  of    \>:v,^,j57*^ 
a  sentence  composing  an  allegation  in  the  complaint,  and  the 
only  reasonable  construction,  to  give  the  language  any  effect, 
is  that  he  intended  to  deny  everything  which  in  legal  effect  was 
embraced  in  the  allegation.    The  respondent  also  urges  that  "the 
denial,  when  coupled  with  the  words  immediately  preceding,  is 
bad.     The  defendant  shows  to  this  court,  and  states  that  he 
denies,"  etc.     We  italicize  the  word  "that"  for  our  o^ti  con- 
venience.    Whether  the  principle  embraced  in  this  objection  is 
true  or  not,  we  need  not  determine.    The  language  of  this  answer 
is:  "The  separate  answer  of  said  defendant     *     *     *    shows 


614 


THE  ANSWER.  [CllAP.  IV. 


to  this  court  and  states:  First,  the  said  defendant  denies,"  etc. 
The  rule  contended  for  by  the  respondent  of  course  would  not 
be  applicable  here. 

The  order  granting  the  motion  to  strike  out  is  reversed. 

Wilson,  C.  J.,  dissenting.    The  defendant  in  this  case  makes 
certain  specific  admissions  and  denials,  but  leaves  most  of  the  ma- 
terial allegations  of  the  complaint  unanswered,  except  by  the 
language  stricken  out  as  indefinite  and  uncertain.   A  mere  denial 
does  not  make  a  material  or  certain  issue  on  many  of  the  aver- 
ments which  the  defendant  thus  attempted  to  traverse.   The  plain- 
tiff charges:  "That  on  the  twelfth  of  September,  1865,  the  said 
defendants,  Remembrance  R.  and  Francis  Oilman  were  jointly 
and  severally  indebted  unto  the  said  plaintiff;     *     *     *     that 
on  the  said  twelfth  day  of  September,  1865,  they,  the  said  Re- 
membrance R.  and  Francis  Oilman,  by  and  through  said  Francis 
Oilman  and  the  plaintiff,  had  an  accounting  and  settlement  to- 
gether of  and  concerning  said  indebtedness,  whereupon   there 
was  found  to  be  due  and  owing  from  said  Remembrance  R. 
and  Francis  Oilman,  and  each  of  them,  to  the  said  plaintiff, 
the  following  sums,  to-wit:     On  account  of  moneys  loaned  to 
them  as  aforesaid  the  sum  of  $691 ;  for  said  horse,  so  sold  and 
delivered  as  aforesaid,  the  sum  of  $125;  and  on  account  of  work 
and  labor  and  services  so  rendered  as  aforesaid,  the  sum  of 
$259.    That  thereupon  and  in  consideration  of  said  indebtedness, 
and  to  pay,  cancel,  and  discharge  the  same,  and  for  the  further 
consideration  of  the  further  sura  of  $125,  thereafter  to  be  paid 
by  said  plaintiff,  they,  the  said  Remembrance  R.  and  Francis 
Oilman,  did  bargain  and  sell  unto  said  plaintiff,  the  southerly 
five  acres  of  said  tract  of  land  above  described,  at  and  for  the 
price  of  $240  per  acre." 

We  might  add  other  allegations,  but  these  are  sufficient  for 
illustration.  A  mere  formal  traverse  of  any  of  these  makes  no 
material  issue.  For  instance :  a  denial  that  the  defendants  were 
indebted  to  the  palintiff  in  the  sum  of  $691  may  be  true,  and 
yet  they  may  be  indebted  to  him  $690;  or  a  denial  that  on  a 
given  day  they  contracted  with  him,  or  were  indebted  to  him, 
is  consistent  with  the  fact  that  they  contracted  with  him,  or 
became  indebted  to  him  on  the  next  subsequent  day,  and  the 
time  being  immaterial,  the  issue  thus  raised  is  immaterial.  This 
form  of  negative  expression,  called  in  the  pleading  a  negative 
pregnant,  implies  an  afiirmatve.     The  denial  that  the  defendant 


Sec.  1.]  KINGSLEY   V.    GILMAX.  615 

did  not  owe  $691,  admits  by  implication  that  they  owed  a 
lesser  sum,  but  does  not  state  how  much.  It  is  therefore  indefi- 
nite, ambijjuous,  and  bad.  Lynd  v.  Picket,  7  Minn.  194,  (Gil. 
128);  1  Chitty,  PI.  613;  Dean  v.  Leonard,  9  Minn.  193,  (Gil. 
176).  Our  statute  has  abolished  the  general  issue,  and  requires 
a  denial  of  each  allegation  of  the  complaint  controverted;  A 
denial  that  is  insufficient,  when  applied  to  a  particular  allega- 
tion, cannot  be  good  merely  because  it  in  terms  applies  to  every 
allegation  of  the  pleading.  A  material  and  certain  issue  should 
be  made  on  everj'  allegation,  separately  considered,  which  the 
pleader  wishes  to  controvert.  The  plaintiff  might,  perhaps,  have 
disregarded  the  denial  in  this  case,  and  treated  the  allegations  of 
the  complaint,  on  which  a  material  issue  could  not  thus  be  made, 
as  admitted.  But  our  statute  provides  that  when  a  pleading 
does  not  conform  to  the  statute^  or  is  so  indefinite  or  uncertain 
that  the  precise  nature  of  the  charge  or  defence  is  not  apparent, 
the  court  may  strike  it  out  on  motion,  or  require  it  to  be 
amended. 

The  course  to  be  pursued  in  such  ca.ses  is  a  matter  of  practice, 
resting,  in  the  discretion  of  the  court  below,  not  subject  to 
review  here.  I  do  not  wish  to  be  understood  as  questioning  the 
sufficiency  of  a  general  denial,  as  it  is  called,  of  each  allegation 
of  a  pleading  where  a  specific  and  separate  denial  would  be 
sufficient.  Such  denials  have  long  been  sanctioned  in  practice, 
and  are,  perhaps,  not  inconsistent  with  the  letter  or  spirit  of 
the  statute ;  but  when  a  denial  is  ambiguoas,  and  does  not  raise 
a  material  issue,  it  is  insufficient  whether  directed  to  one,  or 
to  more  than  one,  of  the  allegations  of  a  pleading.  The  argu- 
ment that  this  construction  would  make  the  practice  laborious 
cannot  prevail  against  the  clear  language  and  meaning  of  the 
statute. 

But  if  we  were  at  liberty  to  discuss  the  propriety  of  the  rule, 
it  would  not  be  difficult  to  show  that  it  should  be  as  now  es- 
tablished. The  true  object  of  pleading  is  to  apprise  the  ad- 
verse party  of  the  claim  or  defence,  so  that  he  may  not  be  taken 
by  surprise,  or  put  to  the  trouble  and  expense  of  preparing  to 
meet  that  which  is  not  to  be  proven  against  him,  or  to  establish 
that  which  could  not  be  truthfully  denied.  A  pleading  that 
fails  to  show  the  true  and  whole  ground  of  action  or  defence 
does  not  conform  either  to  the  requirement  of  justice  or  the 
statute.     It  is  much  more   convenient  and  inexpensive   for  a 


616 


Tin:  ANSWER.  [CllAl'.  IV. 


pleader  to  specifically  aliirni  or  deny,  than  for  a  party  to  pro- 
duce evidence  to  establish  or  disprove  a  particular  matter  or 
thing.  I  do  not  understand  my  brethren  to  hold  that  if  the 
portion  of  the  answer  stricken  out  was  a  mere  denial  it  would 
be  sufficient,  but  that  the  form  of  expression  used  has  the  effect 
and  meaning  that  a  simple  denial  would  not.  In  this  view,  as 
applied  to  this  case,  I  am  unable  to  concur.  If  the  word  "state- 
ment"  or  "averment,"  in  the  language  stricken  out,  is  used  in 
the  sense  of  a  "single  distinct  proposition,"  as  I  think  it  is,  then 
the  words  "and  every  part  of  the  same"  are  meaningless  and 
inoperative,  for  a  denial  of  a  part  of  a  distinct  proposition,  or 
of  any  assemblage  of  words  not  forming  complete  sense,  cannot 
be  admissible ;  and  admitting  that  the  language  used  was  intend- 
ed and  operates  as  a  denial  of  each  and  every  averment,  state- 
ment, or  proposition,  it  is  not  good,  for  a  mere  denial  of  some 
of  the  averments  is  not,  as  we  have  above  attempted  to  show, 
sufficient.  I  am  unable  to  see  that  the  words,  "or  otherwise," 
in  the  connection  in  which  they  are  used,  have  any  meaning 
whatever. 


LONG  V.  LONG. 

79  Mo.  644.     [1883.] 

Philips,  C.     *     *     *     The  reply  was  made  in  solido  to  all 
the  counts,   and  begun  thus:    "Now  comes  plaintiff,   and  for 
reply,  says  he  denies  each  and  every  allegation  in  said  answer 
not  herein  admitted  or  otherwise  pleaded  to. ' '    It  then  proceeded 
to  set  out  the  making  of  the  loan  of  the  $4,000,  on  the  18th  day 
of  December,  1875,  and  the  delivery  of  the  deed  on  the  30th  day 
of  December,  1875;  that  before  the  maturity  of  the  notes,  the 
said  Bulls,  in  the  usual  course  of  business  for  valuable  consid- 
eration, sold  and  assigned  said  notes  to  said  Goodman ;  that  said 
transfer  of  said  notes  was  before  the  breach  of  the  conditions 
of  the  deed  of  trust.     The  reply  then  set  up  a  subsequent  sale 
of  this  property  and  the  purchase  thereof  by  plaintiff  under 
another  deed  of  trust,  but  as  that  occurred  long  after  ouster 
laid,  and  this  action  was  begun,  it  is  not  necessary  to  take  fur- 
ther notice  of  it. 

The  defendant  moved  the  court  to  strike  out  the  reply  for 


Sec.  1.]  LONG  V.  long.  617 

the  reason,  among  others,  that  it  is  not  responsive  to  the  issues ; 
that  it  neither  confesses  nor  avoids;  that  it  does  not  reply  to 
each  separate  count;  because  the  new  matter  constitutes  no 
defence,  and  the  answer  is  vague  and  uncertain  and  tenders  no 
specific  issue  for  trial.  This  motion  was  overruled,  and  there- 
upon the  defendant  filed  motion  for  judgment  on  the  pleadings.  _^^^^  ^^^^ 
This  the  court  also  overruled.  V^a^^  ^  ^>-' 

So  much  of  the  evidence  as  is  material  to  the  decision  of  this 
case  will  be  noticed  in  the  opinion  in  its  proper  connection.  The 
court,  sitting  as  a  jury,  found  the  issues  for  the  plaintiff,  and 
assessed  the  damages  at  $500,  and  monthly  rents  at  $50.  The 
defendant  has  appealed  to  this  court. 

1.     The  reply  in  this  case  is  bad  pleading,  and  ought  to  be 
discouraged.    The  reply  to  new  matter  in  the  answer  is  similar 
"to  the  answer  to  the  petition,  and  it  may  contain  a  general  or 
special  denial.     Vansant  Plead.,  408,  declares  that  the  "code 
allows  the  defendant  to  elect  whether  he  will  answer  by  a  gen- 
eral or  special  denial,  and  having  elected,  he  is  bound  by  it. 
He  cannot  answer  in  both  ways."     Dennison  v.  Dennison,  9 
How.  Pr.  247,  is  cited  in  support.    We  are  not  prepared  to  say 
that  both  modes  of  pleading  may  not  be  employed  in  the  answer 
or  replication.     But  we  do  not  hesitate  to  hold  that  when  both 
are  employed  the  denials  ought  to  be  so  framed  as  to  leave  no 
doubt  in  the  mind  of  the  court  and  the  adverse  party  as  to  what 
is  denied  and  what  is  admitted.    This  course  not  only  sharpens 
the  issues,  but  it  aids  in  the  preparation  of  evidence  and  lessens 
expenses  in  bringing  witnesses  to  meet  matters  not  designed  to 
be  controverted  at  the  trial.    This  reply  says:    "Plaintiff  denies 
each   and   every   allegation   not   herein   admitted   or  otherwise 
pleaded  to."     Then  what  is  admitted  or  otherwise  pleaded  to? 
To  determine  this  the  opposing  counsel  and  the  court  must  go 
through  the  pleading  analytically,  step  by  step,  to  discover  what 
perchance  may  be  admitted  or  denied.     Bliss  Code  Pleading, 
section  331,  says,  the  pleader  should  so  frame  the  denial  as  not 
to  leave  his  adversary  to  thus  hunt  through  the  plea  to  see 
what  is  or  is  not  therein  "admitted."    The  object  of  pleading, 
especially  under  our  code,  is  to  form  specific  and  definite  issues 
of  fact.    When  the  answer,  as  in  this  case,  tenders  many  issues 
of  fact  in  different  counts,  affecting  the  integrity  of  plaintiff's 
title  relied  on  as  the  basis  of  his  recovery,  he  ought  to  answer 
all  the  allegations,  either  by  denying  or  admitting  them.     The 


618  THE  ANSWER.  [ChaI'.  IV. 

reply  in  this  case  is  of  a  character  which  a  party  would  employ 
who  cannot  conscientiously  deny  certain  averments,  and  yet  lacks 
the  open  candor  to  admit,  knowing  its  injurious  effect  on  his 
cause  if  admitted.  Hence,  being  in  doubt  as  to  the  course  of 
safety,  he  adopts  a  duplex  kind  of  plea,  half  denying,  half  con- 
fessing, so  that  he  may  insist  on  a  denial  or  an  admission  as 
the  one  or  the  other  may  serve  him  in  an  emergency  on  the 
trial.  Such  pleading  is  vicious,  and  should  be  rectified  by  mo- 
tion. The  court  should  have  so  far  sustained  the  motion  in 
this  case  as  to  have  compelled  the  plaintiff  to  make  certain  what 
he  denied  and  what  he  admitted.  The  case  was  tried  on  the 
merits,  however,  and  we  will  so  review  it.     *     *     * 


jKWAYLAND  v.  TYSEN. 

45  N.  r.  281.     [1871.] 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme 
Court  in  the  second  judicial  district,  affirming  an  order  of  the 
Special  Term,  striking  out  an  answer  as  sham,  and  ordering 
judgment  for  the  plaintiff". 

The  answer  was  as  follows: 

SUPREME    COURT. 


Answer  of  the  Defendant  to 
the  complaint  of  the  Plaintiff." 
in  this  case. 


Charles     C.     Wayland     and 
James  K.  Aymar, 
against 
David  J.  Tysen. 

The  defendant,  David  J.  Tysen,  denies  each  and  every  alle- 
gation in  the  complaint  of  the  above  plaintiffs  in  this  cause  con- 
tained. 

Bradley  &  Nelson, 
Deft's  Attys.,  173  Broadway,  New  York. 

State  of  New  York,  ) 

r       SS 

City  and  County  of  New  York    ) 

David  J.  Tysen,  being  duly  sworn,  doth  depose  and  say  that 
he  is  the  defendent  in  the  above  entitled  cause,  that  he  has  read 
the  foregoing  answer,  and  that  the  same  is  true  of  his  own 


Sec.  1.]  WAYL.VND    V.    TYSEX.  619 

knowledge,  except  as  to  the  matters  stated  on  information  and 
belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

David  J.  Tysen. 
Sworn  this  11th  day  of  June, 

1870,  before  me, 

Charles  Xettleton, 

Notary  Public,  for  N.  Y.  County. 

The  motion  to  strike  out  this  answer  as  sham  was  based  upon 
the  affidavits  of  the  plaintiffs  and  others  strongly  tending  to  show 
its  falsity. 

Gro\'ER,  J.  The  order  is  appealable  to  this  court,  and  must 
be  revit^ved  in  the  same  manner  as  it  was  required  to  be  by  the 
General  Tf-rm,  upon  the  appeal  taken  to  that  court  by  the  de- 
fendant. (Code,  §11,  subd.  4).  The  entire  answer  of  the  de- 
fendants was  struck  out.  It  was  a  general  denial  of  the  com- 
plaint. It  was  verified  by  the  defendant  before  service  in  the 
manner  required  by  the  Code  when  the  complaint  is  verified. 
The  motion  to  strike  it  out  was  made  upon  affidavits  tending  to 
show  its  falsity,  and  the  court  arriving  at  this  conclusion,  made 
the  order  striking  it  out  as  a  sham.  The  Code  (§152)  provides 
that  sham  and  irrelevant  answers  and  defences  may  be  stricken 
out  on  motion,  and  upon  such  terms  as  the  court  may  in  their 
discretion  impose.  This  answer  is  the  equivalent  of  and  substi- 
tute for  the  general  issue  under  the  common  law  system  of 
pleading.  It  gives  to  the  defendant  the  same  right  to  require 
the  plaintiff*  to  establish  by  proof  all  the  material  facts  neces- 
sary to  show  his  right  to  a  recovery  as  was  given  by  that  plea. 
Under  the  common  law  system,  the  general  issue  could  not  be 
struck  out  as  sham,  although  shown  by  affidavits  to  be  false. 
(Broome  Co.  Bank  v.  Lewis,  18  Wend.  565.)  This  was  not  upon 
the  ground  that  a  false  plea  was  not  a  sham.  That  was  always  so 
regarded,  but  upon  the  ground  that  a  party  making  a  demand 
against  another  through  legal  proceedings  was  required  to  show 
his  right  by  common  law  evidence,  and  that  ex  parte  affidavits 
were  not  such  evidence.  The  court,  under  that  system,  exercised 
the  power  of  striking  out  pleas  setting  up  affirmative  defences 
as  sham  when  shown  by  affidavits  to  be  false,  but  not  where  the 
party  verified  such  plea  by  affidavit.  (Stewart  v.  Hotchkiss,  2 
Cow.  634.)  It  has  been  claimed,  and  the  claim  somewhat  sanc- 
tioned by  the  Supreme  Court,  that  these  rules  have  been  changed 
by  section  152  of  the  code.    That  by  this  all  distinctions  in  strik- 


G20  THE  ANSWER.  [CllAP.  IV. 

iug  out  answers  between  such  as  merely  deny  the  allegations  of 
the  complaint  either  generally  or  specifically,  and  those  setting 
up  affirmative  defences,  have  been  abolished.  This  question  must 
be  regarded  as  original  in  this  court,  notwithstanding  the  claim 
that  this  construction  was  adopted  in  The  People  v.  McComber 
(18  N.  Y.  315).  A  close  examination  of  this  case  shows  that  this 
point  was  not  involved.  It  is  true  that  an  opinion  sustaining 
the  construction  contended  for  was  given  by  Strong,  J. ;  but  the 
case  shows  that  Judges  Denio  and  Harris  dissented  from  this 
opinion,  although  concurring  in  the  affirmance  of  the  judgment 
upon  the  ground  that  the  point  was  not  involved.  This  case 
cannot,  therefore,  be  regarded  as  an  authority  for  the  construc- 
tion insisted  upon.  The  section  in  question  simply  confers  power 
upon  the  court  to  strike  out  sham  and  irrelevant  answers  and 
defences.  This  power  the  court,  as  we  have  seen,  possessed  and 
exercised  under  the  pre-existing  laws.  For  reasons  deemed  sat- 
isfactory it  was  not  extended  to  the  general  issue.  When  this 
was  interposed  as  a  defence  the  party  had  a  right  to  a  trial  by 
jury.  This  right  is  secured  to  him  by  section  2,  article  1,  of  the 
Constitution.  This  right  could  not  be  taken  away  by  simply 
changing  the  name  from  that  of  general  issue  to  that  of  general 
denial.  We  have  seen  that  the  latter  is  the  substitute  for  and 
the  equivalent  of  the  former,  so  far  as  to  require  proof  by  the 
plaintiff  of  all  the  material  facts  showing  his  right  of  recovery. 
This  is  an  argument  tending  to  show  that  the  Legislature,  in  the 
passage  of  the  section  in  question,  only  intended  to  sanction  the 
existing  practice,  and  not  to  confer  any  new  power  upon  the 
court. 

Under  the  construction  claimed,  there  is  nothing  to  prevent 
the  trial  of  this  or  any  other  issue  upon  affidavits.  The  moving 
party  has  only  to  satisfy  the  court  by  a  preponderance  of  evi- 
dence of  this  character  of  the  falsity  of  the  plea,  and  it  may  be 
struck  out,  although  specifically  verified  by  the  party  interpos- 
ing it,  notwithstanding  such  party  maj''  insist  upon  his  right  to 
a  trial,  when  he  can  have  the  privilege  of  cross-examining  the 
affidavits,  and  having  their  credibility  passed  upon  by  a  jury. 
I  think  that  by  the  true  construction  of  the  section,  the  power 
of  the  court  to  strike  out  pleadings  was  not  extended  beyond 
what  it  was  under  the  pre-existing  law.  That  we  have  seen  ex- 
tended only  to  such  affirmative  defences  as  were  not  verified  by 
the  oath  of  the  defendant  or  other  equivalent  evidence.     It  maj' 


Sec.  1.]  WAYLAND    V.    TTSEN.  621 

be  said  that  a  motion  to  strike  out  a  pleading  is  not  the  trial  of  an 
issue  joined  thereby.    This  is  literally  true,  but  in  substance  the 
difference  is  scarcely  perceptible.     It  calls  for  a  determination 
whether  the  pleading  be  true  or  false;  and  if  found  false  and 
struck  out,  the  defendant  is  as  effectually  deprived  of  any  benefit 
therefrom,  as  if  found  false  upon  a  verdict,  although  he  can  de- 
rive no  benefit  from  a  failure  to  find  it  false,  for  the  plaintiff 
will  still  be  entitled  to  a  trial  of  the  issue.    It  will  thus  be  seen 
that  all  the  plaintiff'  hazards  by  the  motion  is  the  costs,  while 
the  defendant  is  precluded  by  an  adverse  result.     It  may  be 
said  that  the  power  claimed  will  only  be  exercised  in  clear  cases, 
where  it  is  manifest  that  the  desire  of  the  defendant  is  only  for 
delay,  and  that  he  is  practicing  a  fraud  for  this  purpose  by  put- 
ting  a   falsehood  upon   record.     Concede  the   construction  of 
the  section  claimed  by  the  respondent,  as  we  must  to  sustain  the 
order,  and  its  exercise  cannot  be  confined  to  this  class  of  cases. 
The  judgment  of  the  court  must  be  exercised  upon  the  affidavits, 
and  if  satisfied  of  the  falsity  of  the  pleading,  although  sustained 
by  opposing  affidavits,  it  becomes  a  duty  so  to  decide  by  granting 
the  motion.    It  is  in  the  power  of  the  plaintiff,  in  every  case,  as 
was  done  in  this,  to  preclude  the  defendant  from  interposing 
either  a  general  denial  or  a  denial  of  specific  facts  by  verifying 
his  complaint.     Thus  he  can  prevent  such  answer,  unless  from 
the  affidavit  of  the  defendant  it  shall  appear  that  it  was  inter- 
posed in  good  faith.    The  Code^  it  is  true,  allows  the  defendant 
to  deny  any  knowledge  or  information  sufficient  to  form  a  belief, 
and  thus  put  the  fact  in  issue.     If  he  verifies  this,  what  right 
has  the  plaintiff'  to  strike  out  his  answer  by  producing  affidavits 
showing  the  truth  of  such  facts  of  which  the  defendant  was 
ignorant  at  the  time  of  putting  in  his  answer.     Such  affidavits 
fail  entirely  to  show  that  the  answer  was  put  in  in  bad  faith, 
or  that  it  was  false ;  and  yet  this  is  the  very  class  of  cases  where 
the  court  will  be  most  frequently  called  upon  to  strike  out  the 
answer.     If  the  defendant  commits  perjury  in  verifying  the 
answer,  as  he  must  have  done  in  this  ease,  if  he  knew  the  allega- 
tions of  the  complaint  were  true,  he  ought  to  be  prosecuted  there- 
for.    If  plaintiff's,  who  complain  of  injury  from  delay  by  the 
fraudulent  interposition  of  false  answers,  would  perform  the 
duty  incumbent  upon   every  good  citizen,  to  prosecute  those 
known  to  be  guilty  of  perjury,  they  would  effectually  stop  such 
an  abuse.    I  am  satisfied  that  the  intention  of  the  Legislature  in 


622  THE  ANSWER.  [CUAP.  IV. 

enacting  the  section  of  the  Code  under  consideration,  was  nut  to 
confer  any  new  power  upon  the  court,  but  to  give  legislative  sanc- 
tion to  that  exercised  under  the  existing  law.  The  order  ap- 
pealed from  must  be  reversed,  and  an  order  entered  denying 
the  motion;  but  as  the  practice  under  which  it  was  made  had 
the  sanction  of  some  reported  cases  in  the  Supreme  Court,  it 
should  be  without  costs  to  either  party. 
AU  the  judges  concurring,  order  reversed. 


CANFIELD  V.  TOBIAS. 
21  Cal.  349.     [1863.] 

Cope,  J.,  delivered  the  opinion  of  the  court — Field,  C.  J.,  and 
Norton,  J.,  concurring. 

This  is  an  action  to  recover  a  balance  alleged  to  be  due  on 
an  account  for  goods,  wares,  and  merchandise.  The  plaintiff  ob- 
tained a  judgment  upon  the  pleadings,  and  the  only  question  is 
as  to  the  sufficiency  of  the  answer. 

The  answer  admits  that  the  indebtedness  once  existed,  but 
avers  that  certain  promissory  notes,  signed  by  the  defendants  and 
indorsed  by  a  third  person,  were  received  by  the  plaintiffs  in  sat- 
isfaction of  the  debt.  It  contains  a  copy  of  a  receipt  purporting 
to  have  been  signed  by  the  plaintiffs,  acknowledging  that  the 
notes  were  received  in  full  payment  of  the  amount  due,  and 
avers  that  the  notes  themselves  have  been  paid.  For  the  pur- 
poses of  the  case,  the  matters  set  forth  in  the  answer  are  to  be 
taken  as  true,  and  there  is  no  doubt  that  these  matters,  relieved 
of  other  considerations,  constitute  a  defence  to  the  action.  It  is 
claimed,  however,  that  the  answer  fails  to  deny,  or  denies  in- 
sufficiently, certain  allegations  of  the  complaint  charging  the 
defendants  with  fraud  and  misrepresentations  in  procuring  the 
assent  of  the  plaintiff's  to  the  arrangement  referred  to.  The  char- 
acter of  the  arrangement  is  fully  set  forth  in  the  complaint,  and 
the  allegations  upon  the  subject  were  inserted  by  way  of  antici- 
pation, and  not  as  a  part  of  the  cause  of  action  necessary  to  be 
stated  in  the  first  instance.  They  are  not,  therefore,  such  allega- 
tions as  were  required  in  the  complaint,  and  treating  the  denials 
in  the  answer  as  insufficient  to  raise  an  issue  upon  them,  the 


Sec.  1.]  CANFIELD  V.    TOBIAS.  623 

question  occurs  as  to  whether  they  are  to  be  acted  upon  as  ad- 
mitted. The  statute  provides  that  every  material  allegation  in 
the  complaint,  not  specifically  controverted  by  the  answer,  shall 
be  taken  as  true;  and  a  material  allegation  is  defined  to  be  one 
which  is  essential  to  the  claim,  and  cannot  be  stricken  from  the 
pleading  without  leaving  it  insufficient.  (Prac.  Act,  sees.  65, 
66).  It  would  seem  from  this  that  an  allegation  which  is  not 
essential  to  the  claim,  and  which,  therefore,  is  an  immaterial 
one,  is  not  an  allegation  necessary  to  be  controverted  by  the 
answer,  in  order  to  avoid  the  consequence  attached  to  a  failure 
in  this  respect  as  to  a  material  allegation.  The  language  used 
is  equivalent  to  saying,  that  unless  the  allegation  is  essential  to 
the  sufficiency  of  the  pleading  this  consequence  is  not  to  follow, 
for  expressio  U7ims  est  exclusio  altcrius  is  the  rule  in  such  cases. 
The  only  allegations  essential  to  a  complaint  are  those  required 
in  stating  the  cause  of  action,  and  aljegat ions,  inserted  for  the 
^£urpose  of  intercepting  and  cutting  oft"  a  defence  are  supe rfluous 
and  immaterial.  The  matter  alleged  may  be  material  in  the  case, 
but  immaterial  in  the  complaint,  and  a  plaintiff  cannot  by  plead- 
ing such  matter  at  the  outset  call  upon  the  defendant  to  answer 
jt  He  must  plead  it  at  the  proper  time  and  in  pursuance  of 
the  rules  regulating  the  course  of  proceeding,  and  he  cannot 
anticipate  the  defence  to  be  made  and  reply  to  it  in  advance. 
The  object  of  such  pleading  is  to  put  the  adverse  party  upon 
his  oath  without  making  him  a  witness,  and  the  effect  of  allowing 
it  would  be  to  establish  a  system  of  discovery  in  conflict  with  the 
spirit  of  the  statute.  We  are  of  opinion,  therefore,  that  the 
allegations  in  question  are  not  such  as  the  defendants  were 
called  upon  to  answer^  and  that  no  inference  of  their  truth  is 
to  be  drawn  from  a  failure  to  deny  them. 

Judgment  reversed  and  cause  remanded. 

HUDSON  V.  THE  WABASH  WESTERN  RY.  CO. 

101  Mo.  13.     [1890.] 

Sherwood,  J.  This  cause  has  been  transferred  to  this  court 
under  the  provisions  of  section  6  of  the  constitutional  amend- 
ment respecting  such  transfers.  The  action  is  for  damages 
caused  by  injuries  to  plaintiff. 

The  petition,  after  certain  recitals  as  to  the  defendant  being 


624  TUE  ANSWER.  [Chap.  IV. 

a  railroad  corporation,  sets  forth  certain  ordinances  of  the  city, 
then  states : 

That  on  the  said  8th  day  of  November,  the  defendant,  un- 
mindful of  its  duties  in  that  regard,  did,  by  its  servants,  care- 
lessly, and  negligently,  and  in  violation  of  said  sections  1234, 
1235,  1237,  and  1239,  commit  the  following  acts,  to-wit: 

"It  did  obstruct  a  street  crossing,  to-wit,  Montgomery  street, 
of  said  city,  by  permitting  freight  cars,  propelled  by  steam 
power,  to  stand  thereon  longer  than  five  minutes,  and  did  not 
cause  the  bell  of  the  engine  to  be  constantly  sounded  when  mov- 
ing said  cars  at  the  place  and  time  aforesaid,  and  did  then  and 
there  back  said  cars,  and  did  not  have  a  man  stationed  on  top 
of  the  car  at  the  end  of  said  cars,  the  same  being  a  train  of 
ears,  farthest  from  the  engine,  to  give  danger  signals,  and  did 
then  and  there  move  said  train  of  freight  cars  without  it  being 
well  manned  with  experienced  brakemen  at  their  posls,  and  so 
stationed  as  to  see  the  danger  signals  and  hear  the  signals  from 
the  engine,  if  any  should  be  made ;  and  did,  then  and  there,  by 
its  servants  in  charge  thereof,  run  its  cars  in  said  city  across  said 
street,  the  same  being  an  improved  street,  as  provided  in  said 
sections  1234,  1235.  1237,  without  any  watchman  being  then  and 
there  stationed,  as  provided  for  in  said  sections  1234,  1235,  who 
might  have  warned,  as  it  would  have  been  his  duty  to  do,  the 
plaintiff  of  his  danger  of  being  injured,  as  he  then  and  there 
was,  as  hereinafter  stated,  and  defendant  did,  then  and  there, 
after  having  left  its  cars  standing  across  said  street  as  afore- 
said more  than  five  minutes,  negligently  move  the  same  without 
any  notice  or  indication  to  plaintiff  that  it  was  going  to  do  so; 
that  by  reason  of  said  careless  and  negligent  acts  of  defendant, 
the  plaintiff',  without  any  fault  on  his  part,  was  caught  between 
two  of  said  cars,  then  and  there,  and  had  his  foot  smashed,  torn 
and  broken,  so  that  he  has  since  then  been  unable  to  work,  to  his 
loss  and  damage  on  that  account  of  four  hundred  dollars,  and 
has  been  and  will  be,  put  to  great  expense  for  medical  services 
on  account  of  said  injuries  to  the  amount  of  one  hundred  dol- 
lars ;  and  did  suffer  great  pain  of  body  and  mind,  and  has  been 
permanently  maimed  and  crippled  by  reason  of  said  injuries  to 
his  damage  in  the  sum  of  two  thousand  dollars,  wherefore  plain- 
tiff prays  judgment  against  defendant  for  the  sum  of  twenty-five 
hundred  dollars  and  his  costs. ' ' 

The  answer  was  as  follows:     "Now  comes  the  defendant  in 


Sec.  1.]  HUDSON  v.  the  w.  w.  rv.  co.  025 

the  above  entitled  caiis»3,  by  its  attorneys,  and,  for  answer,  to 
the  petition  of  plaintiff  therein  filed,  admits  that  it  is,  and  was 
on  the  eighth  day  of  November,  1887,  a  corporation  engaged  in 
operating  cars  and  locomotives  propelled  by  steam  power  in 
the  city  of  St.  Louis  and  the  state  of  Missouri,  and  as  such  cor- 
poration was  duly  incorporated  under  the  laws  of  the  state  of 
Missouri.  Defendant  denies  each  and  every  other  allegation 
contained  and  set  forth  in  plaintiff's  said  petition.  Wherefore, 
having  fully  answered,  defendant  prays  to  be  discharged  Avith  its 
costs."  *  *  * 

I.  It  is  the  unquestioned  law  of  this  state  that  contributory  ^^^2-^^^ 
negligence  is  strictly  an  affirmative  defence ;  and,  in  order  to  avail  ^  ^^  c^'t^ 
a  d>-fendaiit  as  a  matter  of  pleadimi,  it  must  be  affirmatively  c.,^,„5^,,^^j^  , 
pleaded.  O 'Conner  v.  Railroad,  94  Mo.  155,  and  cas.  cit. ;  Dono-  ^  ^  ,^, 
van  V.  Railroad,  89  Mo.  147;  Schlereth  v.  Railroad,  96  ]\Io.  509 -a^^^,^,^ — ^  7? 
The  contention  is,  however,  made  by  the  defendant  that  as  the  \  ^^--<i^'->r-s 
petition  amongst  other  things  alleged  concerning  plaintiff,  "that  V,  -A^^afc-^'. 
by  said  negligent  acts,  and  without  any  fault  on  his  part,  he  was 
then  and  there  caught  between  two  of  said  cars,"  etc.,  and  the 
answer  denied  this  averment,  that  therefore  the  defence  of  con- 
tributory negligence  was  raised.  This  is  a  mistake.  True,  the 
case  of  karle  v.  Railroad,  55  Mo.  482,  apparently  supports  this 
contention,  but  the  utterance  there  was  only  obiter  and  should 
not  be  regarded  as  possessing  any  authoritative  value. 

II.  Besides,  under  our  rulings,  there  was  no  manner  of  neces- 
sity  for  the  petition  to  contain  the  allegations  that  the  injuries 
were  done  to  plaintiff  "without  any  fault  on  his  part"  This 
follows  as  a  corollary  from  the  necessity  of  the  defendant  setting 
forth  such  a  defence  in  his  answer;  the  rule  of  the  code  being 
that  "the  defendant,  by  merely  answering  the  allegation  in  the 
plaintiff's  petition,  can  try  only  such  questions  of  fact  as  are 
necessary  to  sustain  plaintiff's  ease.  If  he  intends  to  rely  upon 
new  matter  which  goes  to  defeat  or  avoid  the  plaintiff's  action, 
he  must  set  forth  in  clear  and  precise  terms  each  substantive  fact 
intended  to  be  so  relied  on.  It  follows  that  whenever  a  defendant 
intends  to  rest  his  defence  upon  any  fact  which  is  not  included 
in  the  allegations  necessary  to  the  support  of  the  plaintiff's  case, 
he  must  set  it  out  according  to  the  statute  in  ordinary  and  con- 
cise language,  else  he  will  be  precluded  from  giving  evidence  of 
it  upon  "the  trial."  Northrup  v.  Ins.  Co.,  47  Mo.  444.  That  case 
was  cited  and  approved  in  Kersey  v.  Garton,  77  Mo.  645. 

40 


626  THE  ANSWER,  [ChAP.  IV. 

IV.     But  while  contributory  negligence  as  a  matter  of  defence 
has  to  bir  pleaded  in  order  for  a  defendant  to  avail  himself  of  it, 
by  the  introduction  of  evidence  to  sustain  that  issue,  yet  it  does 
not  thence  follow  that  if  the  plaintiff's  own  testimony  shows_ 
circumstances  of  contributory  negligence  which  absoiuteiv  ^de^ 
feat  his  right  of  action  and  disprove  his  own  case,  that  the  de- 
fendant is  not  at  liberty  to  take  advantage  of  sucli  testimony^ 
though  produced  by  the  adversary.     On  the  contrary,  it  is  well 
settled  in  this  state,  as  well  as  elsewhere,  that  such  advantage 
may  be  taken  of  the  plaintiff's  testimony,  regardless  of  whether 
the  special  defence  be  pleaded  or  not.    Milburn  v.  Railroad,  86 
Mo.  104,  and  cases  cited;  Schlereth  v.  Railroad,  96  Mo.  509. 
#  #  # 

ALferv    <^-^^^'         Judgment  reversed. 


COLUMBIA  NAT.  BANK  v.  AVESTERN  IRON  AND  STEEL 

CO. 

14  Wa^h.  162.     [1896.] 

Dunbar,  J.  The  first  count  of  the  complaint  alleged  simply 
that  the  plaintiff  was  a  national  banking  association,  and  that  the 
defendant  was  a  domestic  corporation.  The  second  count  alleged 
the  execution  of  the  note  in  controversy,  by  the  defendant ;  and 
the  third,  that  no  part  of  the  same  has  been  paid,  and  that  the 
same  was  wholly  due.  The  allegations  of  the  direct  answer  Vv'ere 
as  follows:  "  (1)  Defendant  admits  the  allegations  of  paragraphs 
one  and  two  thereof;  (2)  defendant  denies  each  and  every  alle- 
gation in  paragraph  three  thereof  contained. ' '  And  the  answer 
then  set  up  an  alleged  affirmative  defence.  The  plaintiff  denied 
each  and  every  allegation  of  the  affirmative  answer,  and  moved 
for  judgment  upon  the  pleadings,  which  motion  was  sustained  by 
the  court;  and  judgment  was  rendered  for  the  amount  claimed 
in  the  complaint,  after  the  taking  of  proof  by  the  court  of  the 
amount  due  by  defendant  to  plaintiff. 

It  is  contended  by  the  appellant  (defendant  below)  that  the 
court  erred  in  sustaining  respondent's  motion  for  judgment  on 
the  pleadings ;  that  the  issue  of  payment  of  the  note  was  squarely 
effected  by  the  denial  in  appellant's  answer  to  the  third  para- 
graph of  plaintiff's  complaint.    We  do  no  think  this  contention 


Sec.  1.]      COLUMBIA  nat.  b.vnk  v.  western  iron  CO.  627 

can  be  sustained,  under  the  law.  In  Edson  v.  Dillaye,  8  How. 
Prac.  273,  the  complaint  alleged  the  nonpayment  of  the  note. 
The  answer  admitted  the  making  of  the  note,  but  denied  the 
allegation  of  nonpayment  of  said  note  as  set  forth  in  said  com- 
plaint, and  also  denied  that  defendants  were  indebted  to  said 
plaintiff  for  said  note,  or  by  reason  of  the  making  thereof,  or 
that  said  note,  or  any  part  thereof,  was  justly  due  or  owing  by 
them.  Held,  "that  all  the  allegations  of  the  answer,  after  the 
admission  of  the  making  of  the  note,  should  be  stricken  out  as 
frivolous."  The  court,  in  that  case,  construing  a  statute  sub- 
stantially like  ours,  said:  "Under  these  denials,  no  new  matter 
would  be  admissible  in  evidence.  The  plaintiff  would  have  noth- 
ing to  prove  upon  the  trial,  except  it  might  be  a  computation  of 
the  interest  upon  the  note,  for  the  making  of  the  note  is  admitted 
by  the  answer.  He  would  only  have  to  open  his  case  to  the  jury, 
and  demand  their  verdict,  and  there  is  nothing  that  the  defend- 
ants  could  give  in  evidence  under  their  answer.    They  could  not 


prove  payment,  because  they  have  not  set  it  up  in  their  answer  • 
and  so  of  any  other  imaginable  defence.  Having  admitted  the 
making  of  the  note,  and  not  having  set  up  any  fact  showing 
why  they  ought  not  to  pay  it,  their  liability  to  pay  it  is  a  legal 
conclusion,  from  which  the  defendants  cannot  escape,  as  they 
have  not  prepared  the  way  by  their  answer,  for  giving  any  de- 
fence in  evidence."  Bliss  on  Code  Pleadings  (section  357)  lays 
down  the  rule  that  nonpayment  is  an  affirmative  matter,  and 
must  be  pleaded  as  well  as  proved.  See,  also,  Bethel  v.  liobin- 
son,  4  Wash.  446,  30  Pac.  734 ;  Van  Santv.  PI.  Sec.  470 ;  Hough- 
ton V.  Townsend,  8  How.  Prac.  441 ;  Clark  v.  Spencer,  14  Kan. 
*398.  In  Hubber  v.  Pullen,  9  Ind.  273,  the  court  said:  "The 
complaint,  it  is  true,  ordinarily  avers  that  the  instrument  sued 
on  has  not  been  paid;  still,  proof  of  that  averment  is  not  re- 
quired, and  therefore  it  is  not  put  in  issue  by  a  general  denial." 
Outside  of  this  question,  the  answer  is  so  evidently  a  pleading  of 
a  negative  pregnant  that  it  could  not  be  sustained  as  a  denial 
of  the  allegations  of  the  complaint,  in  any  event.  The  affirma- 
tive  matter  pleaded  in  the  answer  so  plainly  fails  to  plead  pay- 
ment to  the  plaintiff'  in  this  action  that  we  do  not  feel  called 
upon  to  particularly  discuss  it.    The  judgment  of  the  court  will 


628  THE  ANSWEK.  [CllAP.  IV. 

DUTCIIER  V.  DUTCH ER. 
39  Wis.  651.      [187 6. \ 

Action  for  divorce,  on  the  f-jrouiul  of  adultery.  The  answer 
was  a  genera]  denial. 

Ryan,  C.  J.  We  do  not  inidei-stand  tlie  appellant's  adulterous 
intercourse  with  his  paramour  to  be  questioned  on  this  appeal. 
We  under.stand  his  counsel  to  rest  the  appeal  on  two  positions: 
first,  that  the  respondent  is  not  a  resident,  within  the  statute; 
and,  second,  that  she  had  discovered  the  adulterous  cohabitation 
of  the  appallent  more  than  three  years  before  suit  brought.  *  *  * 

We  are,  therefore,  of  opinion  that  the  respondent  was  in  no 
sense  a  resident  of  this  state  within  the  meaning  of  the  statute, 
at  the  time  of  the  commencement  of  her  suit. 

But  the  question  remains,  Avhether  the  i)leadings  raise  the  issue 
of  her  residence.  Iler  want  of  residence  under  the  statute  is 
clearly  a  personal  disability,  not  affecting  the  present  right  of 
aeticm,  but  only  the  present  right  to  prosecute  the  action;  a 
disability  which  might  be  cured;  clearly  matter  of  abatement, 
not  of  bar.  "Whenever  the  subject  matter  of  the  defence  is  that 
the  plaintiff  cannot  maintain  any  action,  at  any  time,  whether 
present  or  future,  in  respect  of  the  supposed  cause  of  action,  it 
may  and  usually  must  be  pleaded  in  bar:  but  matter  which  mere- 
ly defeats  the  present  proceeding,  and  does  not  show  that  the 
plaintiff  is  forever  concluded,  should  in  general  be  pleaded  in 
abatement."  1  Chitty's  PI.  446.  "All  declinatory  and  dilatory 
pleas  in  equity  are  properly  pleas,  if  not  in  abatement,  at  least 
in  the  nature  of  pleas  in  abatement;  and,  therefore,  in  general, 
the  objections  found  thereon  must  be  taken  ante  litem  contesta- 
tam  by  plea,  and  are  not  available  by  way  of  answer,  or  at  the 
hearing."  Story's  Eq.  PI.,  $5  708.  So  Lord  Redesdale  distin- 
guishes pleas  "that  the  plaintiff  is  not  entitled  to  sue  by  reason 
of  some  personal  disability,"  and  that  "the  plaintiff  has  no  in- 
terest in  the  subject,  or  no  right  to  institute  a  suit  concerning  it," 
from  pleas  in  bar,  and  calls  them  pleas  to  the  person  of  the  plain- 
tiff.   Mitford's  PL,  220. 

And  the  distinction  is  not  one  of  form  merely,  but  of  sub- 
stance.   For,  generally,  judgment  for  the  defendant  on  pleas  in 
abatement,   abates  the   action  only;   on  plea  in  bar,  barTHir 
cause  of  action  everywhere  and  forever^    In  the  present  case, 


Sec.  1.]  DUTCHER  V.  DUTCHER. 


629 


judgment  against  the  respondent  for  want  of  residence  within 
the  statute,  should  not  operate  to  bar  another  action  here,  if  she 
should  have  acquired  a  residence;  or  elsewhere,  at  any  time  or 
under  any  circumstances. 

The  code  does  not  touch  the  distinction  between  defences  in 
abatament  and  defences  in  bar,  or  the  legal  effect  of  judgments 
upon  them.  It  does  indeed  modify  the  manner,  form  and  time 
of  putting  in  such  defences,  but  does  not  confoimd  them  or  their 
consequences.  Formerly,  pleas  in  abatement  and  pleas  in  bar 
must  have  been  separately  and  successively  pleaded  in  that  or- 
der; now,  matter  of  abatement  and  matter  of  bar  may  be  set  up 
as  separate  defences  in  the  same  answer.  Freeman  v.  Carpenter, 
17  Wis.  126.  Whether  they  may  be  successively  pleaded  and 
tried;  or,  being  pleaded  together,  may  be  separately  tried,  are 
(luestions  not  now  before  us. 

If  certain  matters  in  abatement  are  apparent  in  the  complaint, \ 
they  are  ground  for  demurrer  under  the  code.    But  if  matter  in  » 
abatement,  not  apparent  in  the  complaint,  be  relied  on  as  a  de- 
fence, it  must  be  specially  pleaded  in  the  answer.     Ch.   125, 
sees.  5,  8,  R.  S. 

A  general  denial  is  a  plea  in  bar,  not  broader  at  least  than  the 
general  issue  at  conniion  law,  and  cannot  raise  any  defence  by 
way  of  abatement.  Martin  v.  Pugh,  23  Wis.,  184;  Sanford  v. 
McCreedy,  28  id.  103 ;  Ewen  v.  Railway  Co.,  38  id.  613.  Judg- 
ment for  the  defendant  upon  a  general  denial,  is  a  general 
judgment :  a  bar  to  all  future  actions  for  the  same  cause. 

And  it  would  be  a  cruel  abuse  that  it  should  go  upon  a  defence 
in  abatement,  concealed  in  grcmio.  The  code  intended  no  such 
perversion  of  justice.  And  it  is  well  settled  in  this  court  that 
matter  in  abatement,  not  apparent  in  the  complaint,  must,  like 
other  special  defences,  be  specially  pleaded  in  the  answer.  Free- 
man v.  Carpenter,  Sanford  v.  .McCreedy,  Ewen  v.  Railway  Co., 
supra;  Moir  v.  Dodson,  14  Wis.  279;  Cord  v.  Hirsch,  17  id.,  403; 
Kimball  v.  Noyes,  id.,  695 ;  Ilarbeck  v.  Southwell,  18  id.  418 ;  Be- 
vier  V.  Dillingham,  id.,  529;  Wilson  v.  Jarvis,  19  id.  599;  Rob- 
bins  V.  Deverill,  20  id.,  142 ;  Supervisors  v.  Ilackett,  21  id.,  613 ; 
Lefebre  v.  Utter,  22  id.,  189 ;  Quinn  v.  Quinn,  27  id.,  168 ;  Noonan 
v.  Orton,  34  id.,  259;  Wittman  v.  Watry,  37  id.  238;  Smith,  v. 
Peckham,  ante,  p.  414.  This  point  was  overlooked  at  the  bar, 
and  therefore  not  passed  upon  by  the  court,  in  Ilall  v.  Hall,  25 
Wis.  600. 


630  THE  ANSWER.  [CUAP.  IV. 

A  There  is  a  strong  analogy  between  this  question  and  the  ques- 
\  tions  of  jurisdiction  in  the  federal  courts,  resting  on  the  citizen- 
"V  ship  of  parties.  In  those  courts,  all  objections  founded  on 
citizenship  of  the  parties  must  be  specially  pleaded  in  abatement, 
or  they  are  waived.  Conard  v.  Insurance  Co.,  1  Pet.,  386; 
D 'Wolfe  V.  Rabaud,  id.,  476;  Sheppard  v.  Graves,  14  How.,  505. 
The  appellant  contends  that  the  defence  here  is  in  the  nature 
of  a  plea  to  the  jurisdiction.  We  do  not  think  so,  but  need  not 
discuss  the  point.  For  by  all  the  authorities  the  rule  equally 
applies  to  pleas  to  the  jurisdiction,  which,  if  not  strictly  pleas  in 
abatement,  are  in  the  nature  of  pleas  in  abatement.  See  Chitty, 
Story,  Mitford,  ubi  supra. 

The  defence,  therefore,  that  the  respondent  was  not  a  resident 
of  the  state,  though  well  founded  in  fact,  was  inadmissible  under 
the  pleadings  in  this  ease. 

AoJw*^  Judgment  reversed* 


V 


DONK  BROS.  COAL  &  COKE  COMPANY  v.  ARONSON. 
102  Mo.  App.,  590.     [1903.] 

Reyburn,  J.  This  action  for  balance  of  account  for  goods  sold 
and  delivered,  brought  originally  against  four  defendants,  but 
dismissed  as  to  one,  proceeded  to  trial  before  the  court  as  a  jury ; 
defendants  were  sought  to  be  charged  as  co-partners  under  the 
firm  name  of  Mound  City  Coal  &  Ice  Company.  Defendant, 
Jacob  Lippe,  for  separate  answer  pleaded,  that  he  was  not  a 
partner  wdth  his  co-defendants  under  the  partnership  title,  or  at 
any  other  time  averred ;  that  he  was  not  a  partner  with  said  par- 
ties nor  in  the  IMound  City  Coal  &  Ice  Company  in  any  manner 
or  capacity  during  the  time  set  forth,  and  that  he  never  at  any 
time  or  in  any  manner  had  contracted  the  debt  sued  on  by  plain- 
tiff, and  was  not  indebted  to  plaintiff,  and  this  answer  was  veri- 
fied by  the  affidavit  of  this  defendant. 

The  plaintiff  offered  evidence  to  establish  the  correctness  of 
the  account  sued  on,  and  rested  without  tendering  any  proof  of 
the  persons  composing  the  alleged  co-partnership  of  the  Mound 
City  Coal  &  Ice  Company.  The  defendant,  Jacob  Lippe,  there- 
upon asked  the  following  declaration  of  law : 

•Compare  Cohn  v.  Ry.,  182  Mo.  577. 


Sec.  1.]         DONK  BROS.  COAL  CO.  V.  ARONSON.  631 

"The  court  declares  the  law  to  be  that  under  the  pleadings 
and  evidence  in  this  case,  they  must  find  a  verdict  in  favor  of 
the  defendant,  Jacob  Lippe,"  which  the  court  refused  to  give 
and  gave  the  declaration  prayed  by  the  plaintiff  thus : 

''The  court  declares  the  law  to  be  that  under  the  pleadings 
herein,  the  partnership  of  Jerome  W.  Aronson,  Henry  Aronson 
and  Jacob  Lippe  is  admitted  as  charged  in  plaintiff's  petition, 
said  co-partnership  not  having  been  denied  by  affidavit  filed  with 
the  pleadings  in  the  cause." 

Defendant  Lippe  thereupon  asked  leave  to  file  an  affidavit 
to  conform  to  the  ruling  of  the  court,  which  was  as  follows : 

"State  of  Missouri,  City  of  St.  Louis,  ss.— Jacob  Lippe,  being 
duly  sworn  on  his  oath  states,  that  he  was  not  at  any  time  of  the 
times  stated  in  the  petition  in  the  above  entitled  cause,  a  member 
of  any  firm  doing  business  under  the  name  of  Mound  City  Coal 
&  Ice  Company,  and  that  he  is  not  a  partner  with  any  of  the 
co-defendants  named  in  the  petition  in  any  manner  at  any  time 
stated  in  the  petition— Jacob  Lippe." 

The  court  denied  leave  to  file  the  affidavit  and  rendered  judg- 
ment against  all  the  defendants  for  the  amount  claimed  with  in- 
terest accrued.  Respondent  Lippe  alone  filed  a  motion  for  a  new 
trial  which  the  court  sustained  and  the  plaintiff  has  appealed. 

Section  746,  Revised  Statutes,  1899,*  inter  alia,  provides  "and 
where  plaintiff  or  defendant  sues  or  is  sued  as  a  corporation,  and 
where  plaintiffs  or  defendants  sue  or  are  sued  as  a  partnership, 
and  the  names  of  the  several  partners  are  set  forth  in  the  peti- 


S-«»^cM< 


^Instrument  executed  by  opposite  party,  and  certain  provisions  evi- 
dence, when— When  any  petition  or  other  pleading  shall  be  founded  ^^ 

upon  any  instrument  in  writing,  charged  to  have  been  executed  by  the     .^-T'^^.jj^^  ^ 
other  party  and   not  alleged  therein  to  be  lost  or  destroyed,  the  ex-^         ..^..^.^^^n^ 
ecution   of   such   instrument  shall   be   adjudged   confessed,   unless  the       ''^^T"^'^*^ 
party  charged  to  have  executed  the  same  deny  the  execution  thereof,  «^J»-r.^CKu»-X  5> 
by   answer   or   replication,   verified   by   affidavit.     And   where  plaintiff  ^>«»-'-«»-s»-o  jox 
or  defendant  sues  or  is  sued  as  a  corporation,  and  where  plaintiffs  cKJ»Jb-i^Aja>5 
or  defendants  sue  or  are  sued  as  a  partnership,  and  the  names  of  the  v^  -cKa-Q  o^v 
several  partners  are  set  forth  in  the  petition  or  answer,  it  shall  not  ,^i^l«^,s..>><X- 
be  necessary  to  prove  the  fact  of  such  incorporation  or  partnership, 
unless  the  opposite  party  put  such  fact  in  issue  by  affidavit  filed  with 
the  pleadings  in  the  cause.     And  when  it  is  alleged  in  any  pleading 
that  any  county  or  township  has  in  force  therein  any  of  the  provisions 
of  article  II,  chapter  69,  Revised  Statutes  of  1899,  restraining  domestic 
animals  therein  named  from  running  at  large,  it  shall  not  be  necessary 


632  THE  ANSWER.  [ClIAP.  I\'. 

tiou  or  answer,  it  shall  not  be  necessary  to  prove  the  fact  of  such 
incorporation  or  partnership,  unless  the  opposite  party  put  such 
fact  in  issue  by  affidavit  filed  with  the  pleading:s  in  the  cause." 
The  then  able  presiding  judj^e  of  the  Kansas  City  Court  of  Ap- 
peals has  ably  portrayed  the  object  of  this  provision  of  the 
statute  in  Ilaysler  v.  Dawson,  28  ]\Io.  App.  531,  stating  its  design 
to  be  to  make  the  party  first  purge  himself  of  the  imputation  of 
a  mere  dilatory  plea,  and  relieving  the  opposite  party  of  the 
necessity  of  making  proof  unless  put  in  issue  in  the  statutory 
method. 

The  question  here  presented  appears  not  to  have  been  directly 
presented  to  this  court,  but  in  Walker  v.  Point  Pleasant,  49  Mo, 
App.  1.,  c.  247,  the  judge  announcing  the  decision,  by  implica- 
tion would  have  held  a  verified  plea  or  answer  supported  by 
the  affidavit  denying  the  corporate  existence  of  a  municipal  cor- 
poration, a  compliance  with  the  statute  then  in  force,  if  the 
question  had  then  been  before  him  for  decision.  Nor  does  the 
Supreme  Court  seem  to  have  been  expressly  called  upon  to  deter- 
mine the  point  here  made  by  appellant,  though  again  inferen- 
tially,  language  adopted  in  Short  v.  Taylor,  137  Mo.  1.,  c.  525,  and 
Flynn  v.  City  of  Neosho,  114  Mo.  1.,  c.  573,  strongly  incline  to- 
ward the  position  contended  for  by  respondent. 

In  J\leyer  Bros.  v.  Ins.  Co.,  73  Mo.  App.  1.,  c.  169,  when  the 
Kansas  City  Court  of  Appeals  was  first  invited  to  construe  the 
above  provisions  of  the  statute,  the  court  held  where  the  answer 
of  defendant,  sued  as  a  corporation,  specially  denied  its  corporate 
existence,  and  was  verified  by  affidavit,  that  under  the  statute,  if 
defendant  had  desired  to  put  in  issue  its  corporate  existence  it 
should  have  done  so  in  the  manner  required  by  the  statutory 
provision  by  affidavit  filed  with  the  pleading,  but  it  was  fur- 
ther held  that  the  defendant,  a  private  corporation,  was  con- 
eluded  from  such  denial  in  this  case,  by  appearing  and  defending 
in  its  corporate  name,  and  one  judge  dissented  from  the  para- 

to  prove  that  fact,  unless  the  opposite  party  put  such  fact  in  issue  by 
affidavit  filed  with  the  pleadings  in  the  cause. — R.  8.  1809,  sec.  746. 

Preceding  section  construed. — The  preceding  section  shall  not  be 
construed  to  authorize  any  instrument  of  writing  to  be  received  in 
evidence,  without  proof  of  its  execution,  in  any  suit  against  an  ex- 
ecutor or  administrator,  or  any  other  person  representing  the  person 
charged  to  have  executed  such  instrument,  nor  any  county,  city,  or 
town  sued  upon  any  instrument  alleged  to  have  been  executed  by  such 
county,  city  or  town,  or  any  corporate  authorities. — R.  S.  1899,  sec.  7^7. 


Sec.  1.]        DONK  BROS.  COAL  CO.  V.  ARONSON.  (333 

graph  of  this  opinion  holding  that  the  answer  did  not  put  in  issue 
the  corporate  existence  of  the  defendant. 

In  Richards  v.  McNemee,  87  Mo.  App.,  396,  the  same  court 
all  the  judges  concurring,  with  the  only  change  in  its  individual- 
ity the  succession  of  the  judge  rendering  the  decision  vice  the 
judge  dissenting  in  the  former  case  of  Meyer  v.  Ins.  Co.,  had 
again  presented  the  similar  question  respecting  the  existence  of 
a  partnership  challenged  by  answer  authenticated  by  jurat.  In 
the  original  opinion,  the  ruling  in  Meyer  Bros.  v.  Ins.  Co.,  was 
adhered  to,  and  it  was  held  that  it  was  not  sufficient  to  merely 
swear  to  a  pleading  filed  in  the  case,  which  denied  the  partner- 
ship or  incorporation,  but  to  answer  the  terms  of  the  statute, 
the  affidavit  of  itself  must  contain  all  necessary  denials  (1.  c. 
401 ) .  Upon  motion  for  rehearing,  the  court  modified  its  former 
ruling,  and  announced  as  its  conclusion,  that  such  a  construc- 
tion of  the  statutory  provision  was  too  technical,  in  view  of  what 
was  generally  understood  as  necessary-  to  constitute  an  affidavit. 
In  this  latter  expression  of  the  Kansas  City  Court  of  Appeals 
we  concur,  believing  that  the  actual  evil  sought  to  be  remedied 
by  this  legislation  is  reached,  and  the  true  object  of  the  statute 
attained  by  the  proper  verification  of  a  plea  traversing  the  exist- 
ence of  a  partnership  or  corporation,  without  incorporating  such 
denial  in  a  separate  paper  and  affidavit. 

The  judgment  is  affirmed.  Bl.\i.^d,  P.  J.,  and  Goode,  J., 
concur. 


WILLIAMS  MOWER  &  REAPER  CO.  v.  SMITH. 

33  Wis.  530.     [1873.] 

Cole,  J.  The  only  question  in  this  case  is,  whether,  when  a 
suit  is  brought  by  a  foreign  corporation  and  the  defendant  an- 
swers the  general  denial  merely,  this  dispenses  with  the  necessity 
of  proving  the  corporate  existence  of  the  plaintiff  on  the  trial? 
The  circuit  court  held  that  the  corporate  existence  of  the  plaintiff 
was  put  in  issue  by  such  an  answer,  and,  there  being  no  proof 
upon  that  point,  granted  a  nonsuit.  We  think  this  ruling  was 
erroneous  under  the  provisions  of  our  statute.  Sec.  3,  ch.  148, 
R.  S.,  provides  that  in  actions  by  or  against  any  corporation 
created  by  or  under  any  statute  of  this  state,  it  shall  not  be 


63i  THE  ANSWER.  [CUAP.  IV. 

necessary  to  prove  on  trial  the  existence  of  such  corporation,  un- 
less the  defendant,  in  his  answer,  shall  have  denied  that  the 
plaintiff  is  a  corporation,  and  annexed  thereto  an  affidavit  of 
the  truth  of  such  an  answer.  This  provision  plainly  dispenses 
with  the  necessity  of  proving  its  corporate  existence  where  only 
the  general  issue  is  pleaded,  so  far  as  domestic  corporations  are 
concerned.  The  Central  Bank  of  Wisconsin  v.  Knowlton,  12 
Wis.  624.  By  sec.  11,  ch.  148,  supra,  it  is  enacted,  that  a  foreign 
corporation  created  by  or  under  the  law  of  any  other  state,  gov- 
ernment, or  country,  may  prosecute  in  the  courts  of  this  state 
in  the  same  manner  as  corporations  created  under  the  laws  of 
this  state,  upon  giving  security  for  costs  as  nonresident  plaintiffs 
are  required  to  do.  This  section  places  a  foreign  corporation  on 
the  same  footing  precisely  as  a  domestic  corporation  in  respect 
to  the  prosecutions  of  action,  with  the  single  exception  that  it  is 
required  to  give  security  for  the  payment  of  costs.  This  is  the 
plain  language,  and  seems  to  be  the  spirit,  of  this  provision ;  and 
as  a  domestic  corporation  is  not  required  to  prove  its  charter  on 
the  trial,  unless  the  defendant  in  his  answer  has  denied  the  ex- 
istence of  the  plaintiff's  corporation,  and  annexed  thereto  an  affi- 
davit of  the  truth  of  the  answer  it  follows  that  a  foreign  corpora- 
tion need  not  prove  its  act  of  incorporation  unless  its  existence  is 
denied  in  a  like  manner.  *  *  * 
^  Judgment  reversed. 


Section  2.    New  Matter. 

JL  CARTER  V.  EIGHTH  WARD  BANK. 

67  N.  Y.  Supp.  300.  [1900.] 

On  demurrer  to  certain  paragraphs  of  an  answer  to  a  com- 
plaint in  an  action  for  the  conversion  of  checks  and  drafts. 
Gaynor,  J.  (after  holding  that  the  complaint  was  sufficient) : 
After  making  a  general  denial,  the  answer  pleads  nine  separate 
defences;  or  as  we  sometimes  say,  ''affirmative  defences";  but 
that  is  only  tautological,  for  every  "defence."  (i,  e.,  that  which 
is  called  a  "defence"  in  pleading)  can  only  consist  of  new  af- 
firmative matter,  and  the  burden  of  proof  is  on  the  defendant 
to  affirmatively  establish  such  defence  of  new  matter.  Code  Civ. 
Proc.  §  500 ;  Cruickshank  v.  Publishing  Co.,  32  Misc.  Rep.  152, 


Sec.  2.]  carter  v,  eighth  ward  bank.  635 

65  X.  Y.  Supp.  678,  and  cases  there  cited;  Durst  v.  Railroad  Co., 
67  X.  Y.  Supp.  297.  And  each  of  these  defences  is  demurred  to 
on  the  ground  "that  it  is  insufficient  in  law  upon  the  face 
thereof."    Code  Civ.  Proc.  §494. 

Before  inquiring  into  the  sufficiency  of  these  defences,  it  seems 
necessary  to  refer  to  the  way  in  which  the  sufficiency  of  a  de- 
fence (i.  e.,  an  affirmative  defence)  has  to  be  tested.  I  had  not  ,  ^ 
supposed  a  word  could  be  said,  much  less  needed,  on  the  point  C1-<3>>'nX.  ^^^^ 
until  my  attention  was  called  to  an  observation  in  the  opinion  ^>^  '^^^^  ®~\\~ 
of  Chief  Judge  Andrev.s  in  Douglas  v.  Insurance  Co.,  138  X".  Y.  dJ'-V-iosis.'^-js  <^ 
209,  33  N.  E.  938,  20  L.  R.  A.  118,  and  the  apparently  strange 
application  of  it  in  Wiley  v.  Village  of  Rouse's  Point,  86  Hun, 
495,  33  X.  Y.  Supp.  773.  The  remark  of  the  learned  chief  judge  o,..«>vy^,..©-s^-e^ 
is  as  follows :                                                                                            ^        ^^ 

"The  allegations  of  the  complaint  not  denied  in  the  affirma- 
tive defence  are  for  the  purpose  of  the  question  now  presented 
to  be  deemed  admitted.  The  affirmative  defence  is  to  be  treated 
as  a  separate  plea,  and  the  defendant  is  not  entitled  to  have  the 
benefit  of  denials  made  in  another  part  of  the  answer,  unless  re- 
peated or  incorporated  by  reference  and  made  a  part  of  the 
affirmative  defence." 

I  find  much  difficulty  in  getting  any  meaning  out  of  this. 
What  does  it  mean?    An  affirmative  defence  cannot  consist  of 
^nials_a^  all,  and  never  could.    It  can  by  the  express  words  of  '^.•^^-'*^  ^^ . 
the  Code  consist  only  of  ' '  new  matter ' '  constituting  a  defence,  '=5^-'^^»-^^"'''-'^^*^ 
First  in  an  answer  comes  a  denial  or  denials,  if  there  be  any,  and  ^*"*^  *^'^\>:>'  ^^ 
then  "defences,"  if  there  be  any  (i.  e.  "affirmative  defences, "  ^^''^^''''^  ^\^x2, 
as  we  sometimes  say,  as  if  there  could  be  any  other  kind).     A    ^'^^^'"y^"'^^^^*^ 
jenial  of  allegations  of  the  complaint,  or  anv  of  themp  can  ha'^  <^XrNA.>^^^^9-X^  U 
no  place  in  a  defence.    It  would  be  wholly  irrelevant  and  imma-  ^\^rfv^f2^\3^ 
terial  there,  and  on  demurrer  to  the  defence  for  insufficiency         tJ5vv*lj6^<>l! 
would  have  to  be  disregarded,  for  an  answer,  reply  or  demurrer  ^  0^.^^«x^■»A/»*-«tS 
to  a  complaint,  answer  or  defence,  as  is  well  understood,  raises  ,^,^jVjj^  «dt/^j,_ 
no  issue  on  immaterial  or  irrelevant  allegations,  but  only  on  the  Sjj.,,^,^:;,'^-..,*^ 
material  and  relevant  allegations.     A  demurrer  to  a  defence  Ls  c^y^'^-'-i^L^La/NA^ 
tested  solely  by  whether  there  is  "new  matter"  therein  which 
constitutes  a  defence.     If  there  be  anything  there  which  is  not 
"new  matter,"  it  has  no  weight  whatever.     What  then  can  be 
meant  by  saying  that  in  considering  a  demurrer  to  a  defence 
"the  defendant  is  not  entitled  to  have  the  benefit  of  denials  made 
in  another  part  of  the  answer,"  unless  they  be  "repeated  or  in- 


(336  THE  ANSWER.  [Cu.U*.  IV. 

corporated"  in  such  defence?  Such  denials  if  repeated  or  iucor- 
porated  in  an  atBrinative  defence  could  not  be  considered  at  all 
on  the  question  of  the  sufficiency  of  such  defence  of  new  matter. 
They  "would  be  wholly  immaterial  and  irrelevant  there,  and 
would  be  struck  out  on  motion,  if  the  plaintiff  chose  to  make 
such  motion,  though  that  would  be  unnecessary. 

Nothing  can  be  better  undei-stood  among  us  than  that  when  a 
defence  is  demurred  to  its  sufficiency  has  to  be  determined  on 
the  assumption  that  the  complaint  is  true.  If  denials  of  allega- 
tions  of  the  complaint  could  be  a  material  and  relevant  part  of 
a  defence,  and  had  to  be  considered  there,  it  is  obvious  that  the^ 
pleader  could  always  prevent  a  defence  from  [tcin;'^  tleniurred  to 
by  incorporating  denials  in  it.  Suffice  it  to  say  that  what  the 
Code  calls  "a  defence"  in  pleading,  and  which  we  sometimes 
call  an  affirmative  defence,  can,  by  the  express  words  of  the  Code, 
consist  only  of  new  matter,  constituting  a  defence,  i.  e.,  new 
matter  which,  assuming  the  complaint  to  be  true,  constitutes  a 
defence  to  it ;  from  which  it  is  obvious  that  a  denial  or  denials 
of  the  complaint  can  be  no  part  of  such  defence.  If  such  a 
denial  or  denials  could  be  a  material  and  relevant  part  thereof, 
a  defence  would  no  longer  be  a  defence  and  demurrable  for 
insufficiency. 

Each  of  these  defences  must  therefore  be  tested  as  to  its  suf- 
ficiency by  asking  whether  if  all  of  the  material  allegations  of 
the  complaint  be  taken  as  true,  the  matter  pleaded  in  such  de- 
fence is  nevertheless  a  defence  to  the  cause  of  action  alleged. 
*  *  *  * 

Demui'rer  sustained. 

GALLIMORE  v.  AMMERMAN  ET  AL. 

39  Ind.,  3:^3.     [1872.] 

WoRDEN,  J.:  Complaint  by  the  appellant  against  the  appel- 
lees, as  follows: 

"The  plaintiff  complains  of  the  defendant,  and  says  that,  on 
or  about  the  ....  day  of  March,  1871,  the  above  named  defend- 
ants, at  the  town  of  West  Lebanon,  assaulted  the  plaintiff,  and 
wath  force  compelled  him  to  go  from  the  street  in  said  town, 
where  he  then  was  in  the  pursuit  of  his  interest  and  pleasure,  to 
a  small  shanty,  so  built  Avith  coarse  boards  as  to  be  as  cold  and 


g£(;    2. J  GALI.IMUKE  V.    AililERMAN.  637 

comfortless  as  out  door  iu  the  open  air,  aud  the  defendants  then 
and  there  imprisoned  him,  said  plaintiff,  and  kept  and  detained 
him  as  a  prisoner  therein  for  the  space  of  seventeen  hours,  con- 
trary to  the  law  of  this  state  and  ag:ainst  the  will  of  the  said 
plaintiff,  by  means  of  which  he  suffered  great  agony  of  body 
on  accovmt  of  cold  and  hunger,  by  means  of  which  his  health 
was  greatly  impaired,  so  that  he  was  compeUed  to  lose  his  time, 
not  only  during  said  false  imprisonment,  but  ever  since,  on  ac- 
count of  said  exposure  and  imprisonment,  and  he  was  greatly 
injured  in  his  name  and  credit.    And  he  further  avers  that,  dur- 
ing such  false  imprisonment,  said  defendants  refused  to  allow 
him  any  food  and  nourishment  whatever,  and  that  the  weather 
was  veiy  cold.     And  the  plaintiff  says  that  he  is  damaged,  by 
means  of  the  foregoing  facts,  in  the  sum  of  five  thousand  dollars; 
wherefore  ,"  etc. 

2      And  for  a  further  complaint,  plaintiff  says  that  the  de- 
fendants, jointly  acting,  the  said  Miller  as  a  justice  of  the  peace 
within  the  town  of  West  Lebanon,  and  the  said  Ammerman,  act- 
ing as  the  marshal  of  said  town,  claiming  to  act  by  virtue  of 
•mthority  conferred  on  them  by  the  corporate  authorities  of  said 
town,  arrested  the  plaintiff  therein  on  the   ...  .  day  of  March, 
1871    and  compelled  him  to  go  from  the  streets  of  said  town, 
where  he  was  in  the  pursuit  of  his  pleasure  and  interest,  to  a 
small  shanty  built  of  coarse  boards,  so  that  it  was  as  cold  and 
comfortless  as  out  in  the  open  air,  and  then  and  there  imprisoned 
the  said  plaintiff,  without  food  or  fire,  for  the  space  of  seventeen 
hours,  without  giving  him  a  trial  of  the  pretended  charge  for 
which  thev  claim  to  have  arrested  him;  and  he  avers  that  his 
trial  was  thus  delaved,  and  he  was  thus  detained,  for  no  cause 
whatever,  except  the  malice  of  the  defendants.    The  charge  upon 
which  he  was  arrested  was  a  violation  of  some  pretended  ordi- 
nance of  said  town,  and  no  reasonable  cause  existed  why  he 
should  not  have  been  tried  at  once,  without  detaining  him  seven- 
teen hours  before  trial.    And  he  avers,  that  at  the  time  of  such 
arrest,  to-wit,  about  five  o'clock  P.  M.,  he  had  had  nothing  to 
eat  since  morning,  at  breakfast  time;  and  they  kept  him  thus 
confined,  without  anything  to  eat  or  nourishment,  for  the  space 
of  seventeen  hours  thereafter,  and  willfully  refused  to  furnish 
him  with  anv  food  or  fire,  or  anything  to  keep  him  warm;  and 
he  says  the  weather  was  very  cold  at  the  time.     He  avers,  by 
means  of  such  exposure  and  harsh  treatment,  his  health  was 


638  THE  ANSWER.  [ChaP.  IV. 

SO  impaired  that  he  has  been  sick  ever  since,  and  suffered  great 
pain  of  body  and  mind ;  by  means  of  which  he  is  damaged  in  the 
sum  of  five  thousand  dollars,  for  which  he  demands  judgment," 

etc. 

A  demurrer  was  filed  to  the  complaint,  which  was  sustained  to 
the  first  paragraph,  the  plaintiff  excepting,  and  overruled  as  to 
the  second. 

The  defendants  answered  the  second  paragraph,  first,  by  gen- 
eral denial,  and  second,  "that  defendant,  John  Ammerman,  was 
marshal  of  the  town  of  West  Lebanon,  in  Warren  county,  In- 
diana, on  the  17th  day  of  March,  1871 ;  that  on  said  last  men- 
tioned date,  defendant  John  Miller  was  an  acting  justice  of  the 
peace,  duly  commissioned  and  qualified,  in  and  for  said  town 
of  West  Lebanon ;  that  on  said  17th  day  of  March,  said  West 
Lebanon  was  an  incorporated  town  under  the  law  of  the  State 
of  Indiana  in  that  behalf;  that  on  said  17th  day  of  ]\Iarch,  an 
ordinance  of  said  town  of  West  Lebanon  was  in  force,  a  copy  of 
which  is  herewith  filed,  marked  'A,'  and  made  a  part  of  this 
paragraph  of  answer;  that  on  said  17th  day  of  March  plaintiff 
came  to  said  town  of  West  Lebanon  and  became  highly  intoxi- 
cated, and  went  about  the  public  streets  and  public  places  in 
said  town  while  in  that  state,  and  then  and  there  disturbed  the 
peace  and  quiet  of  said  town  by  making  loud  and  unusual  noise, 
and  by  using  profane  and  indecent  language  therein,  in  violation 
of  said  ordinance;  that  thereupon,  on  said  17th  day  of  IMareh, 
defendant  Ammerman,  by  virtue  of  his  authority  as  marshal  of 
said  town,  and  seeing  said  plaintiff  drunk,  as  aforesaid,  and  dis- 
turbing the  peace,  as  aforesaid,  arrested  said  plaintiff,  and  he, 
said  plaintiff,  being  too  drunk  to  be  tried  or  plead  to  any  charge 
of  violation  of  said  ordinance,  placed  him  in  the  town  prison,  the 
same  being  a  light,  comfortable,  plank  house,  and  placed  hay, 
blankets  and  quilts  in  said  prison  for  plaintiff  to  sleep  on ;  that 
on  the  next  morning,  to-wit,  on  the  18th  of  March,  plaintiff  was 
taken  by  said  marshal  before  defendant  John  Miller,  and  having 
been  arraigned  before  said  Miller  on  a  charge  of  drunkenness, 
disturbing  the  peace,  and  using  profane  language,  in  violation 
of  the  provision  of  said  ordinance,  for  plea  said  he  was  guilty 
as  charged;  whereupon  the  defendant  Miller  fined  the  plaintiff 
five  dollars  and  costs  for  his  violation  of  said  ordinance,  which 
fine  and  costs  plaintiff  paid." 

Accompanying  the  paragraph  is  the  ordinance  pleaded. 


Sec.  2.]  gallimore  v.  ammerman.  639 

The  plaintiff  demurred  to  this  paragraph  of  the  answer,  for 
want  of  sufficient  facts ;  but  the  demurrer  was  overruled,  and  he 
excepted ;  and  declining  to  reply,  judgment  was  rendered  against 
him. 

The  questions  presented  here  involve  the  correctness  of  the 
rulings  in  sustaining  the  demurrer  to  the  first  paragraph  of  the 
complaint  and  overruling  that  to  the  second  paragraph  of  the 
answer. 

We  are  not  favored  with  anj^  brief  on  behalf  of  the  appellees, 
and,  therefore,  are  not  advised  what  objection  is  supposed  to 
exist  to  the  first  paragraph  of  the  complaint,  or  upon  what 
ground  the  demurrer  thereto  was  sustained. 

That  paragraph  charges  that  the  defendants  assaulted  the 
plaintiff,  and  by  force  compelled  him  to  go  from  the  place  where 
he  was,  to  a  shanty,  where  they  imprisoned  him,  and  detained 
him  as  a  prisoner  therein  for  the  space  of  seventeen  hours, 
against  his  will.  No  objection  occurs  to  us,  unless  it  be  that  the 
paragraph  does  not  aver  that  the  acts  of  the  defendants  were 
done  illegally,  or  wrongfully  or  without  any  competent  author- 
ity. But  in  our  opinion  no  such  allegation  was  necessary.  As  a 
general  rule,  a  party  is  not  required  to  allege  more  than  he  is 
bound  to  prove,  in  order  to  entitle  himself  to  recover.  The  facts 
alleged,  on  being  proved,  would  entitle  the  plaintiff,  prima  facie, 
to  recover;  and  absolutely,  unless  it  should  be  shown  that  the 
acts  were  rendered  rightful  and  legal  by  some  competent  excuse 
or  authority.  Such  excuse  or  authority  must  come  from  the  de- 
fendant. ''Whoever  assaults  or  imprisons  another  must  justify 
himself  by  showing  specially  to  the  court  that  the  act  was  law- 
ful."    (1  Chit.  PL,  501.) 

The  paragraph  is  evidently  dra^^^l  from  a  precedent  for  a 
declaration  for  false  imprisonment,  found  in  2  Chit.  PI.,  857, 
which  contains  no  allegation  that  the  acts  were  either  wrongful, 
illegal,  or  without  authority. 

We  are  of  opinion  that  the  paragraph  was  good,  and  that  the 
demurrer  thereto  was  erroneously  sustained.  (Colter  v.  Lower, 
35  Ind.,  285.) 

We  come  to  the  second  paragraph  of  the  answer,  pleaded  to 
the  second  paragraph  of  the  complaint.  It  is  objected  by  the 
appellant,  that  no  valid  ordinance  is  set  out,  but  no  objection  to 
the  validity  of  the  one  pleaded  is  pointed  out,  and  we  see  none. 
It  is  further  objected  that  the  pleading  in  no  manner  identifies 


640  THE  ANSWER.  [ChaP.  IV. 

the  trespass  justified  with  that  complained  of.  The  precedents 
for  pleas  justifying  arrests  under  authority  contain  the  averment 
that  the  trespasses  justified  ''are  the  supposed  trespasses  in  the 
said  declaration  mentioned,  and  whereof  the  said  plaintiff  hath 
above  thereof  complained  against  the  said  defendant."  (3  Chit. 
PL,  1081.)  This,  or  some  equivalent  allegation,  secerns  to  be  es- 
L ,  (SLfiJuov^.,,^.    sential. 

'S^ 'tAjtjJixk  In  the  paragraph  under  consideration,  there  is  nothing  to  show 

o-^  acrv-v^  -  dthat  the   arrest   and   imprisonment   of  the   plaintiff   which   arc 

6J^^'^-»-^  ^<».^  justified,,  or  attempted  to_be  ^justified,  are  the  same  arrest  and. 

vsA  -\iAX  ^tf'/v'^Tmprisonment  of  which  the  plaintiff  complained.    This  objection 

^Wu^  B-vvjL.      is  fatal  to  the  validit}'  of  the  paragraph.    Some  other  objections 

A^\j3-^        are  made  to  the  paragraph,  which  need  not  be  noticed,  as  one 

fatal  defect  renders  the  paragraph  as  bad  as  if  there  were  many. 

The  demurrer  to  the  paragraph  in  question  should  have  been 

sustained. 

The  judgment  is  reversed,  with  costs,  and  the  cause  remanded, 
with  instructions  to  proceed  in  accordance  with  this  opinion. 

Judgment  reversed. 
^    l^iA^—  • 

BAUER  V.  WAGNER. 

39  Mo.,  385.     [1867.] 

Holmes,  Judge,  delivered  the  opinion  of  the  court. 

This  was  an  action  of  ejectment  for  the  recovery  of  a  small 
strip  of  land,  part  of  a  large  lot,  which  had  been  sold  as  a  por- 
tion of  lot  No.  337,  in  the  city  of  Jefferson.  The  strip  was  eight 
inches  in  front,  and  about  two  feet  in  w^idth,  upon  an  alley  in  the 
rear.  The  several  portions  of  this  lot.  No.  337,  had  been  sold 
and  conveyed  to  various  persons  at  different  times,  by  quantity 
in  front  feet,  with  some  calls  for  adjoining  lots,  but  without  fixed 
land  marks  set  upon  the  ground  conveyed  in  each  instance.  The 
several  proprietors  had  taken  possession  of  their  lots  and  im- 
proved the  same,  enjoying  their  possessions  undisturbed  for 
more  than  ten  years;  but  upon'  an  accurate  survey  being  made, 
it  appeared  that  they  had  not  taken  possession  exactly  according 
to  the  true  lines,  and  that  the  defendant's  possession  and  build- 
ings encroached  by  the  above  quantity  upon  the  land  claimed  by 
the  plaintiff,  and  that  he  had  so  held  possession  for  upwards  of 


Sec.  2.]  bauer  v.  wagner.  641 

twenty  years.  And  there  was  evidence  before  the  jury  bearing 
upon  the  question  of  the  adverse  character  of  the  possession.  The 
jury  rendered  a  verdict  for  the  defendant. 

The  first  question  presented  for  our  determination  here  arises 
upon  a  motion  to  strike  out  a  part  of  the  answer,  which  pleaded 
the  statute  of  limitations  in  bar  of  the  action  in  these  words : 

"That  the  said  supposed  cause  of  action  of  the  said  plaintift', 
if  any  such  he  have,  has  not  accrued  within  ten  years  next  be- 
fore the  commencement  of  this  suit,  and  pleads  the  statute  of 
limitations  in  bar  to  any  such  supposed  cause  of  action." 

The  objection  seems  to  rest  chiefly  upon  the  ground  that  by 
reason  of  the  words  "if  any  such  he  have,"  the  plea  fails  to 
confess  and  avoid  the  action.  The  statute  of  limitations  must^ 
be  specially  pleaded,  except  where  some  express  statute  other- 
wise provides,  and  the  nature  of  the  plea  is,  that,  admitting  the 
plaintiff  once  had  a  cause  of  action,  it  avers  that  the  same  has 
been  lost  by  reason  of  the  lapse  of  the  whole  period  of  the  statute 
bar.  (2  Tidd's  Pr.,  647,  651 ;  Ang.  Lim.  §  285;  Bricket  v.  Davis, 
21  Pick.,  404.)  The  right  to  maintain  this  action  depends  es- 
sentially upon  the  determination  of  the  question  when  the  right 
of  entry,  or  the  cause  of  action,  accrued ;  and  if  it  did  not  accrue, 
or  was  not  a  subsisting  cause  of  action,  at  any  time  within  the 
period  of  the  statute,  it  is  barred  and  lost.  (Ang.  Lim.  §369.)  r\  ^i^^^^^^jtaj^MX,^ 
It  would  seem  to  be  very  clear,  then,  that  but  for  these  words  th(^  Ci  j 

statute  would  have  been  well  pleaded,  notwithstanding  the  use-  .       J^  - 

less  addition  of  the  latter  clause,  which  by  itself  alone  would  V^^^-*-*^'-^-^^ 
be  bad  pleading.     Pleading  conditionally,  or  in  the  alternative,  ^-'^-^"^"^  ^^^.s^ 
is  not  allowable,  and  should  be  avoided.^   In  Gale  v.  Capern,  1  ^^^^^^^"'^'"^ 


Adolph.  &  El.,  102,  a  replication  "that  the  said  supposed  debt 
and  set-off  did  not  accrue  within  six  years,"  was  held  virtually 
to  admit  that  the  action  had  once  accrued  as  alleged.  In  Mar- 
jaret  v.  Bays,  4  Adolph.  &  EL,  489,  a  plea  that  "the  supposed 
debt,  if  any  such  there  he,  did  not  accrue  to  the  plaintiff'  at  any 
time  within  six  years,"  was  held  bad  on  special  demurrer,  be- 
cause it  did  not  fully  confess  and  avoid  the  cause  of  action.  In 
this  ease,  we  think  the  language  of  the  pleading  may  be  taken 
as  virtually  admitting  that  the  plaintiff  once  had  a  cause  of 
action,  and  as  only  questioning  its  present  existence.  It  is  a 
^lere  matter  of  form,  and  the  same  strictness  need  not  be  insisted 
on  under  our  practice,  which  has  abolished  the  old  special  de- 
murrer to  mere  matters  of  form.  Besides  that,  whatever  fault 
41 


642  THE  ANSWER.  [Cli.VP.  IV. 

or  error  there  may  have  been  in  this  respect  may  be  eonsidert'd 
as  fully  cured,  after  verdict,  by  the  operation  of  the  statute 
of  jeofails.  We  think  there  was  no  material  error  in  overruling 
the  motion.     «     •     • 

On  the  whole,  the  issue  appears  to  have  been  fairly  placed 
before  the  jury,  under  correct  principles  of  law,  and  we  dis- 
cover no  sufficient  ground  for  disturbing  the  verdict. 

Judgment  affirmed.     The  other  judges  concur. 


V^  H' 


OCEAN  STEAMSHIP   CO.  v.  WILLIAMS. 
69  Ga.,  2rA.     [1882.] 

Williams  brought  an  action  against  the  Ocean  Steamship 
Company  of  Savannah.  Ilis  declaration  contained  two  counts. 
The  first  count  was  for  false  imprisonment,  and  alleged  that  on 
the  11th  day  of  January,  1882,  the  defendant,  "with  force  and 
arms  did  unlawfully  and  wrongfully  imprison  and  detain"  him 
"in  the  police  barracks,  falsely  pretending  that  he  was  guilty 
of  the  crime  of  larceny  from  the  vessel ;  that  he  was  thereby  de- 
prived of  liberty  for  twenty-six  hours,"  was  greatly  harassed 
and  oppressed,  subjected  to  trouble  and  expense,  deprived  of 
employment,  his  character  and  reputation  damaged,  and  he  w'as 
put  to  great  suffering.     *     *     * 

The  defendant  then  filed  a  plea  of  justification,  setting  up  as 
a  defence  the  following  facts:  At  the  time  of  the  arrest  the 
plaintiff,  as  defendant's  servant,  Avas  engaged  in  unloading  one 
of  the  ships  of  the  defendant.  Just  before  the  arrest,  several 
pairs  of  stockings,  pants  and  other  articles  of  clothing  in  the 
custody  of  defendant  as  a  common  carrier  were  feloniously 
stolen,  taken  out  and  removed  from  the  package  in  which  they 
were  delivered  to  defendant;  these  articles  were  found  hidden 
away  in  the  side  of  the  ship,  in  the  lower  and  upper  between 
decks,  to  which  the  plaintiff  and  the  gang  with  which  he  worked 
had  access,  and  where  they  alone  were  employed  in  unloading. 
These  articles  were  known  by  plaintiff  to  have  been  so  stolen, 
and  were  feloniously  taken  and  hidden  by  him  with  intent  to 
steal  the  same  off  of  said  steamship.  Wherefore  defendant,  hav- 
ing good  and  probable  cause  of  suspicion,  and  suspecting  said 


Sec.  2.]  ocean  steamship  co.  v.  williams.  643 

plaintiff  to  havo  beou  guilty  of  or  concerned  in  the  stealing,  did 
give  the  plaintiff  in  charge  to  a  police  officer  and  ex-officio  con- 
stable of  the  city,  and  peace  officer  of  the  state,  and  requested 
him  to  take  the  said  plaintiff  into  his  custody  and  safely  keep 
him  until  he  could  be  carried  and  conveyed,  and  cany  and  con- 
vey him  before  some  one  of  the  justices  assigned  to  keep  the 
peace  of  the  state  of  Georgia,  to  be  examined  by  and  before  such 
justice,  touching  and  concerning  the  premises,  and  to  be  further 
dealt  with  according  to  law;  and  said  peace  officer  then  and 
there  did  take  said  plaintiff'  into  his  custody,  and  as  soon  as  con- 
veniently could  be  done,  the  said  plaintiff  was  carried  in  custody 
to  and  before  M.  F.  Molina,  one  of  the  justices  of  the  peace 
in  and  for  the  county  of  Chatham,  in  said  state,  and  said  plain- 
tiff was  by  order  of  said  M.  F.  Molina,  justice  of  the  peace  as 
aforesaid,  further  detained  imtil,  upon  the  12th  day  of  January, 
1882,  the  said  plaintiff  was  discharged  out  of  custody  by  the  said 
justice  of  the  peace.  The  time  of  imprisonment  was  a  reasonable 
time  for  the  purpose  aforesaid,  "which  are  the  alleged  tres- 
passes in  said  declaration  set  out,  and  this  ihe  said  defendant," 

etc. 

Defendant's  counsel  claimed  that  the  filing  of  the  plea  of 
justification  gave  them  the  opening  and  conclusion  of  the  argu- 
ment before  the  jury.  The  court  refused  to  allow  this  claim, 
and  permitted  plaintiff's  counsel  to  open  and  conclude  the  argu- 
ment.    *     *     * 

Hall,  Justice. 

1.  The  first  question  to  be  considered  in  this  case  is,  whether 
the  amended  plea  of  the  defendant,  filed  and  allowed  during  the 
progress  of  the  trial,  is  a  plea  in  justification  of  the  plaintiff's 
arrest  and  imprisonment,  or  is  merely  an  amplification  of  the 
general  issue  of  not  guilty  ?  Without  this  plea,  could  the  defend- 
ant, under  the  general  issue,  have  introduced  the  evidence  by 
which  it  sought  to  justify  the  plaintiff's  arrest  and  imprison- 
ment? The  only  count  in  the  declaration  on  which  the  trial 
was  had  alleged  that  the  defendant,  on  the  day  named  therein, 
wrongfully  and  unlawfully  imprisoned  and  detained  the  plain- 
tiff' in  the  police  barracks  of  the  city  of  Savannah,  falsely  pre- 
tending that  he  was  guilty  of  the  crime  of  larceny  from  the 
vessel;  and  that  by  reason  thereof  he  was  deprived  of  his  liberty 
for  the  space  of  twenty-six  hours,  and  was  greatly  harassed  and 
oppressed,  subjected  to  trouble  and  expense,  deprived  of  em- 


644 


Tiic  ANSWER.  [Chap.  IV. 


ployment,  liLs  character  aiul  ivputation  seriously  damaged,  and 
he  was  put  to  ixroat  .siiffering. 

Now,  what  did  the  plea  of  not  guilty  put  in  issue,  and  what 
proof  was  admissible  thereunder?  "In  trespass  to  the  person, 
personal  or  real  property,  the  defendant,  under  the  general  issue 
of  not  guilty,  can  give  in  evidence  matter  which  directly  con- 
troverts the  facts  of  his  having  committed  the  acts  complained 
of;  as  in  trespass  for  assault  and  battery,  with  a  tearing  of 
clothes,  a  plea  of  not  guilty  of  the  assault  made  modo  ct  forma, 
was  held  to  operate  as  a  denial  of  the  battery  and  laceravit  as 
well  as  the  assault."  (1  Chitty's  Plead.,  534,  535.)  So  our 
Code,  §  3458,  after  defining  what  a  plea  of  the  general  issue  is, 
provides  that  no  other  evidence  is  admi.ssible  under  such  plea, 
except  such  as  disproves  the  plaintiff's  cause  of  action,  and  other 
matters  in  satisfaction  (confession?)  or  avoidance  must  bo 
specially  pleaded.  See  upon  this  section  44  Ga.,  199,  which  is 
fully  in  point  with  the  present  case. 

In  all  such  cases  Mr.  Chitty,  1  Plead.,  535,  says:  "Matters 
in  discharge  or  confession  and  avoidance  of  the  action  must  be 
specially  pleaded."  Again,  "the  plea  of  not  guilty,  therefore, 
is  proper  in  trespass  to  person,  if  the  defendant  committed  no 
assault,  battery  or  imprisonment;  but  in  trespa.ss  to  person  son 
assault  demesne,  the  moderate  correction  of  servant,  molliter 
manus  imposuil  to  preserve  the  peace,  or  a  justification  in  de- 
fence of  the  possession  of  real  or  personal  property,  by  autlioi-- 
ity  of  law  without  process,  as  a  private  individual,  must  always 
have  been  pleaded  specially."   (  lb.,  535,  536.) 

"A  plea,"  he  says,  "justifying  an  arre.st  of  the  plaintiff  upon 
the  ground  that  a  felony  had  been  committed,  and  that  there  was" 
reasonable  ground  to  suspect  and  accuse  the  plaintiff,  must  dis- 
tinctly state  the  specific  reasons  for  suspecting  the  plaintiff'. 
And  a  plea  justifying  assault  and  imprisonment  on  the  ground 
of  a  breach  of  the  peace  committed  by  the  plaintiff,  must  show 
that  the  breach  of  the  peace  was  continuing,  or  show  facts  from 
which  a  renewal  of  the  breach  was  to  be  apprehended,  and  as 
little  as  possible  should  be  left  to  inference."    lb. 

"These  are  positive  rules  of  law,  in  order  to  prevent  surprise 
on  the  plaintiff  at  the  trial  by  the  defendant  then  assigning 
various  reasons  and  causes  for  imprisoning  the  plaintiff,  of 
which  he  had  no  notice,  and  which  consequently,  he  could  not 
be  prepared  to  meet  at  the  trial  on  a  plea  of  not  guilty  on  fair 


Sec.  2.]  ocean  steamship  co.  v.  williams.  645 

and  equal  terms  with  respect  to  the  evidence  and  proof  of  facts. 

(lb.,  536,  537.)  .        ,     •      ^    ^    1 

A  striking  instance  of  the  application  of  this  rule  is  afforded 
by  the  case  of  Brooks  v.  Ashburn  et  al.,  9  Ga.,  297,  which  was 
an  action  of  trespass  on  the  case  for  killing  a  slave,  to  wnich 
the  defendants  filed  the  plea  of  the  general  issue  and  sought  to 
justify  themselves  thereunder  by  showing  that  they  were  acting 
as  patrol  when  the  slave  was  killed;  they  relied  upon  the  act  of 
1770   which  declared  that  "if  any  person  shall  be,  at  any  time, 
sued'  for  putting  in  execution  any  of  the  powers  contained  m 
the  act,  such  person  shall  and  may  plead  the  general  issue,  and 
give  the  special  matter  and  this  act  in  evidence";  but  this  was 
not  allowed  by  the  court  for  two  reasons :  because  this  was  a  com- 
mon acticm  of  trespass;  the  defendant  were  not  sued  for  putting 
in  execution  the  powers  contained  in  the  act  of  1770,  and  could 
only  avail  themselves  of  the  proof  under  a  special  plea  of  justifi- 
cation     This,  the  court  ruled,  was  requisite  under  the  ninth 
section  of  our  judiciary  act  of  1799,  which  required  the  defence 
to  be  plainlv,  fullv  and  distinctly  set  forth. 

The  plea  in  the  case  before  ns_comes  substantially  up  to  these 
.4,irpm,.nts,    It  Sfts  forth  tlllTthe  plaintiff  was  at  the  time_one_ 
of  thP  defendant's  ^prvmits.  who,  with  others,  had  custouy  of  th- 
^Toods  stolen  on  flip  vessel :  that  he  and  his  associates  could  alone 
T^;M^;;^"g^inn^  of  the  theft,  and  particularizes  each  and  ajljhe, 
7:T;:;:;i;^;^t^s  that  gave  the  defendant  reasonable  and  ^obable, 
:;:f^^I^^drt^ispect  the  guilt  of  this  party  and  to  cause  his  arrest, 
tTpri^nmnPnt  and  detention";  and  it  avers  that  he  was  jiot.^-_ 
tTi^^ThTcustodv  an  unreasonable  length  of  time.    We  hold  this 
r^ood  plea  in  justification  of  the  conduct  of  the  defendant,  and, 
ilirayc^him  the  right  to  open  and  conclude  the  argument  of  the 

case_to_the_iiili:.  ,     •     i  , 

~  2.  In  everj'  case  of  tort,  if  the  defendant  was  authorized  by 
law  to  do  the  act  complained  of,  he  may  plead  the  same  as  a 
justification :  bv  such  plea  he  admits  the  act  to  be  done,  and  shall 
be  entitled  to  'all  the  privileges  of  one  holding  the  affirmative 
of  the  issue.  Code,  §  3051.  Among  these  privileges,  and  per- 
haps the  most  important  of  all  of  them,  is  that  of  opening  and 
concluding  the  argument  of  the  case  to  the  jury.  This  privile-e 
was  denied  him  because,  as  it  was  said,  the  plea  was  not  filed 
until  the  plaintiff  had  made  out  his  case  and  closed  his  evidence. 
This  objection  is  fully  met  and  answered  by  this  court  in  Ran- 
soms V.  Christian.  56  Ga.,  3.')4. 


646  THE  ANSWER.  [ChAP.  IV. 

1       ,■■     3.     It  is  claimed,  moreover,  that  the  plea  is  defective,  in  that 

■'""'"^'^V^'**^^  it  does  not  admit  all  that  is  charj^ed  a^'ainst  the  defendant  in 

r^_^^    the  declaration ;  it  does  not,  of  course,  admit,  as  was  insisted  that 

^^^^^^^K^  it  should  admit,  that  the  imprisonment  was  wrongful  and  unlaw- 

ji^,,,,^  vw,3ir4ul ;  that,  instead  of  being  a  plea  of  justification,  would  have 

k^s.-^'^i-o^^ amounted  to  a  confession  of  judgment  to  the  plaintiff.    AH  that 

.    ,5o\i.Jw#^  the  defendant  was  required  to  admit  by  its  plea  was  the  im- 

prlsonment  and  the  manner  thereof  as  charged  in   plaintiff's 

declaratifinr"(49  Ga.,  491.)     •    •    •  ' 

^/-vx       c-w^  Judgment  reversed. 

CAPURO  v.  BUILDERS'  INS.  CO. 
.      39  Cal,  123.     [1870.] 

Temple,  J.,  delivered  the  opinion  of  the  Court: 

This  action  is  brought  upon  a  policy  of  insurance,  and  the 
answer,  after  denying  most  of  the  allegations  of  the  complaint, 
sets  up  four  distinct  charges  of  fraud,  but  does  not  charge  the 
plaintiff  with  having  caused  the  property  to  have  been  burned. 
On  the  trial,  evidence  was  introduced  by  the  defendant,  which, 
as  is  claimed  by  defendant's  counsel,  tends  to  prove  this  fact. 
The  evidence  had  no  necessary  or  obvious  tendency  to  estab- 
lish such  a  charge,  and  may  well  have  been  permitted  to  come  in 
without  objection  from  plaintiff  on  that  ground. 

The  Court,  at  request  of  defendant,  and  against  the  objection 
of  plaintiff',  instructed  the  jury,  among  other  matters,  in  sub- 
stance, that  "if  the  plaintiff  was  in  any  way  instrumental  in 
causing  the  buildings  to  be  burned,  they  should  find  for  the 
defendant. ' ' 

It  is  claimed  that  the  instruction  was  erroneous;  that  no  such 
ioGue  was  made  by  the  pleadings. 

The  rule  is,  undoubtedly,  as  stated  by  appellant,  that  when  a 
party  relies  upon  fraud,  either  to  support  his  cause  of  action  or 
in  defense,  he  must  set  up  the  facts  which  constitute  the  fraud. 
iKent  V.  Snyder,  30  Cal.,  666.) 

It  follows,  as  a  necessary  consequence  of  that  proposition,  that 
he  can  prove  only  those  facts  which  he  has  set  up.  Of  course,  he 
is  not  required,  by  the  rule,  to  allege  with  minuteness  all  the 
particulars  and  circumstances  which  constitute  the  evidence  of 


•Jl^JL^avO^X*^**^ 


Sec.  2.]  capuro  v.  builders'  ins.  co.  647 

the  alleged  fraud,  but  he  must  make  the  charge  with  sufficient 

distinctness  to  enable  his  adversary  to  come  prepared  with  his  '^'^^   T^ 

evidence  upon  the  general   questions  of  fraud  which  will  be  ^    '^  ^^^ 

raised.  ^i^l5-c.  v^a... 

In  this  case,  the  question  whether  plaintiff  caused  the  build-     ^-^  caa-/^ 
ing  to  the  burned,  was  not  one  of  the  issues  made  by  the  plead- 
ings, and  it  was,  therefore,  error  to  instruct  the  jury  that  they 
could  find  against  the  plaintiff  on  that  ground.    The  denial  that  \ 
the  plaintiff  had  given  a  correct  account  of  how  the  fire  origin-  r 
ated,  even  if  it  authorized  evidence  to  show  that  the  fire  com-  \ 
menced  in  the  inside  of  the  building,  instead  of  on  the  outside,    \ 
as  plaintiff  had  reported,  gave  no  intimation  to  the  plaintiff'  that  ^ 
he  was  charged  with  having  started  the  fire  himself. 

Order  reversed  and  a  new  trial  ordered.* 


^JOHNSON  V.   OSWALD. 
38  Minn.,  550.     [1888.] 

GiLFiLLAN,  C.  J. :  This  action  was  for  conversion  of  personal 
property.  The  complaint  alleges,  generally,  without  referring 
in  any  way  to  the  means  by  which  he  acquired  title,  that  the 
chattel  was  the  personal  property  of  the  plaintiff,  and  that  he 
was  in  possession  of  it,  and  that  the  defendants  caused  it  to  be 
v/rongfully  taken  from  him.  The  answer  is  a  general  denial. 
The  defendants  offered  to  prove  in  substance  that  they,  owning 
the  chattel,  were  induced  to  sell  to  one  Larson,  from  whom  plain- 
tiff claims  to  derive  his  title,  by  his  (Larson's)  false  and  fraudu- 
lent representations,  and  that  upon  discovering  the  fraud  they 
rescinded  the  sale,  and  retook  the  chattel.  There  was  already 
in  the  case  evidence  sufficient  to  go  to  the  jury  that  plaintiff  was 
not  a  bona  fide  purchaser  of  Larson's  title.  The  court  below 
excluded  the  evidence  so  offered. 

The  question  raised  is,  can  a  defendant  in  an  action  for  con- 
version, where  the  complaint  contains  only  the  simple  allegation 
of  title  in  plaintiff,  prove  under  a  general  denial  that  the  sale 
under  which  plaintiff  claims  title  was  void  so  as  to  pass  no  title 

♦Accord:  Nichols  v.  Stevens,  123  Mo.  56,  overruling  earlier  de- 
cisions. 


648  THE  ANSWER.  [ClIAP.  IV, 

by  reason  of  fraud?  The  general  rule  is  that  "anythinj?  that 
tends  to  controvert  directly  the  allegations  in  the  complaint  may  I 
be  shown  under  the  general  denial."  Bond  v.  Corbett,  2  Minn.,  ^ 
248,  (Gil.  209.)  Upon  this  rule  it  is  held  that  in  an  action  in 
replevinL-OT  f"^  conversion  a  di^nial  of  the  simple  alletration  ol 
plaintiff's  title  will  admit  proof  of  title  in  defendant  or  a  \]}\r(\_ 
pereon;— Caldwell  v.  Bruggerman,  4  Minn.,  70,  (Gil.  190)  ;  Jones 
V.  Rahilly,  16  ]\Iinn.,  320,  (Gil.  283)  ;  McClelland  v.  Nichols,  24 
Minn.,  176 ;  Robinson  v.  Frost,  14  Barb.,  536 ;  Davis  v.  Hoppock, 
6  Duer,  254;  Emerson  v.  Thompson,  18  N.  W.  Rep.  503— for 
such  proof  directly  controverts  the  allegation  of  plaintitl's  title 
in  the  complaint.  In  the  case  of  a  sheriff,  defendant,  who  seeks 
to  justify  his  taking  under  process,  on  the  claim  that  the  sale  to 
plaintiff  was  in  fraud  of  the  creditors  of  the  person  against 
whom  the  process  runs,  it  has  been  held  that  a  general  denial  of 
plaintiff's  title  is  not  sufficient.  Frisbee  v.  Langworthy,  11  Wis., 
375.  This  rule  in  this  state,  in  the  case  of  an  officer  justifying 
under  process  is  stated  in  Kenney  v.  Goergen,  36  Minn.,  190  (31 
N.  W.  Rep.,  210),  to  be  that  under  the  denial  of  plaintiff's  title, 
and  the  allegation  of  title  in  the  person  against  whom  the  process 
runs,  he  may,  without  specially  pleading  it,  show  fraud  as  to 
creditors  in  the  sale  by  such  person  to  plaintiff.  There  is  some 
reason  for  requiring  from  the  officer  in  such  a  case  somewhat 
fuller  pleading  than  from  the  defendant  in  a  case  like  this.  A 
sale  in  fraud  of  creditors  is  valid  and  effectual,  and  passes  the 
title  as  between  the  parties.  Only  creditors  who  are  defrauded 
by  it  can  avoid  it,  and  there  is  some  reason  for  requiring  one 
who  seeks  to  avoid  it  to  put  himself  in  the  place  of  a  defrauded 
creditor.  But  in  a  case  like  this,  if  the  facts  be  as  defendant 
sought  to  prove  them,  the  sale  was  void,  and  Larson  got  no  title. 
As  between  the  parties  to  the  sale  and  to  the  action,  it  remained 
in  defendant,  unless  plaintiff  is  a  bo7ia  fide  purchaser.  A  gen- 
eral denial  puts  in  issue  only  the  facts  alleged  in  the  complaint. 
Thus,  j-f  this  complaint,  instead  of  alleging  plaintiff's  title,  had, 
alleged  the  facts  through  which  it  was  derived,  as  had  it  alleged 
the  sale  by  defendant  to  Larson,  and  title  derived  by  plaintiff 
from  him,  a  general  denial  would  enable  defendant  only  to  dis-_ 
prove  those  facts,  but  not  to  prove  other  facts  to  vary  their  legal 
effect.  In  such  case  the  fraud  could  not  have  been  proved  with- 
out pleading  it.  The  case  would  then  have  been  analogous  to 
Finley  v.  Quirk,  9  Minn.,  194  (Gil.  179),  in  which  a  denial  of 


Sec.  2.]  johnson  v.  oswald.  649 

the  sale  of  a  horse  was  held  to  raise  an  issue  only  on  the  salec^^  ^  o<:K_v^<t 

in  point  of  fact,  and  did  not  justify  evidence  that  it  was  made  ^tx.>l_<.  ^  rV^^o^ 

on  Sunday,  so  as  to  be  illegal.    Under  the  denial  in  that  case  the  ^-.^^  \5^»-=S>>  <j 

defendant  mi?ht  have  followed  any  line  of  evidence  that  would 

have  disproved  the  sale  in  point  of  fact.     So,  under  a  denial  of  i 

the  pleadable  fact  of  title,  the  defendant  may  introduce  any  I 

evidence  that  will  disprove  sucn  aiieirea^act.    in  many~cases  it    \^XT«r^SXI^ 

might  put  a  detendant  to  great  disadvantage  if,  when  the  com-  ^_^,^_^  ix^j-*^ 

plaint  alleges  only  the  fact  of  title,  without  disclosing  by  what 

means    plaintiff   claims   to  have    acquired   it,   defendant   must 

anticipate  plaintiff's  evidence  as  to  the  source  of  title,  and  plead 

expressly  facts  to  do  away  with  the  effect  of  it. 

It  was  error  to  exclude  the  evidence  offered,  and  there  must  be 
a  new  trial. 

0  ^    .  Order  reversed. 


RICHTMEYER  v.  REMSEN. 

38  N.  Y.,  206.     [1868.] 

Action  to  recover  of  the  defendant,  sheriff  of  Kings  County, 
the  amount  of  an  execution  against  one  Searle,  issued  out  of  the 
Supreme  Court  against  the  body  of  the  judgment  debtor,  and 
delivered  to  the  defendant  for  collection.  The  defendant  ar- 
rested Searle,  and  duly  admitted  him  to  the  liberties  of  the  jail 
of  Kings  county.  Searle,  after  being  so  admitted,  escaped  there- 
from to  the  city  of  New  York,  and  while  so  absent  therefrom, 
this  action  was  commenced.  The  defendant,  in  his  answer,  al- 
leged that  he  had  admitted  Searle  to  the  liberties  of  the  jail,  and 
that  Searle,  after  his  escape  therefrom,  voluntarily  returned 
thereto  before  the  commencement  of  the  action.  At  the  close  of 
the  plaintiff's  case,  the  defendant  moved  for  a  nonsuit,  upon  the 
grounds,  first,  that  the  judgment-roll  failed  to  show  that  the 
execution  against  the  body  of  Searle  was  authorized ;  second,  that 
it  appeared,  from  the  evidence,  that  Searle  was  detained  off  from 
the  limits  by  the  fraud  and  connivance  of  the  plaintiff.  The 
motion  was  denied,  and  the  defendant's  counsel  excepted.  The 
defendant's  counsel  then  offered  to  prove  that  Searle  would  have 
returned  to  the  jail  limits  before  the  commencement  of  the  action 
had  he  not  been  prevented  from  so  doing  by  the  fraudulent  acts 


650  THE  ANSWER.  [ChAP.  IV. 

of  the  plaintiff's  agents.  This  evidence  was  objected  to  and  re- 
jected, upon  the  ground  that  no  such  defense  was  set  up  in  the 
answer,  and  the  defendant's  counsel  excepted.  The  defendant's 
counsel  moved  to  amend  the  answer  by  alleging  the  above  facts. 
The  motion  was  denied,  and  the  defendant's  counsel  excepted. 
The  defendant's  counsel  excepted  generally  to  the  charge  to  the 
jury.  The  jury  found  a  verdict  for  the  plaintiff,  and  ordered 
the  exceptions  to  be  first  heard  at  the  General  Term.  The  excep- 
tions were  heard,  and  judgment  for  the  plaintiff  ordered  upon 
the  verdict,  from  which  judgment  the  defendant  appealed  to 
this  court. 

Grover,  J. :  The  judgment  record  in  the  action  of  the  plain- 
tiff against  Searle  showed  that  one  Johnson  had  a  cause  of  action 
against  the  former  for  the  conversion  of  personal  property ;  that 
Johnson  assigned  such  cause  of  action  to  the  plaintiff,  who  com- 
menced the  action  thereon  as  assignee  against  Searle,  and  re- 
covered the  judgment  upon  which  the  execution  was  issiled.  The 
ground  of  objection  to  the  record  was,  that  the  cause  of  action 
was  not  assignable.  There  are  two  answers  to  this:  First,  the 
objection,  if  available,  could  only  be  taken  in  the  action  against 
Searle.  The  recovery  of  the  judgment  in  that  case  is  conclusive 
upon  the  right  of  the  plaintiff  thereto  upon  the  parties  in  this 
action.  Second,  the  cause  of  action  thereon  was  assignable,  and 
the  assignee  could  maintain  an  action  thereon  in  his  own  name. 
(Haight  V.  Hoyt,  19  N.  Y.,  464.)  A  recovery  of  judgment  for 
the  conversion  of  personal  property  authorizes  an  execution 
against  the  person  of  the  defendant.  (Wessen  v.  Chamberlin, 
3  N.  Y.,  331.)  The  only  remaining  question  in  this  case  is, 
wjiether  the  defense,  that  Searle  would  have  returned  to  and 
upon  the  liberties  of  the  jail  before  the  commencement  of  the 
action,  had  he  not  been  prevented  by  the  fraud  of  the  plaintiff, 
was  inadmissible  under  the  answer,  no  such  ground  of  defense 
having  been  alleged  therein.  The  escape  in  the  present  case  was 
negligent.  In  such  cases,  recaption  before  suit  brought  is  a  de- 
fense, and  if  such  recaption  is  prevented  by  the  fraud  of  the 
plaintiff  or  his  agent,  that,  also,  would  constitute  a  defense  to 
the  action.  A  voluntary  return  of  the  debtor  into  custody  before 
suit  brought,  is  equivalent  to  and  constitutes  a  recaption  by  the 
sheriff.  There  is  no  dispute  as  to  those  rules  of  law.  The  ques- 
tion is,  whether  these  grounds  of  defense  must  be  set  up  in  the 
answer.     The  code  ( §  249 )  provides  that  the  answer  must  con- 


Sec.  2.]  richtmeyer  v.  remsen.  651 

tain,  first,  a  general  or  specific  denial  of  each  material  allegation 
of  the  complaint  controverted  by  the  defendant,  etc. ;  second,  a 
statement  of  any  new  matter  constituting  a  defense,  etc.  The 
question  then  is,  whether  the  defense  offered  consisted  of  new 
matter,  or  whether  it  merely  disproved  any  of  the  material  al- 
legations of  the  complaint.  All  that  the  plaintiff  must  allege'"^ 
and  prove,  to  maintain  his  action,  is  the  recovery  of  the  judg-  ( 
ment,  the  issuing  and  delivery  of  the  execution  to  the  sheriff, 
the  capture  of  the  debtor  by  the  sheriff'  upon  the  execution,  and 
the  escape  from  custody  before  suit  brought  against  the  sheriff 
therefor.  We  have  seen  that  the  sheriff'  may  defend  the  action^ 
by  proving  a  recaption  of  the  defendant  before  suit  brought,  or 
facts  legally  excusing  him  from  making  such  recaption.  Proof 
of  such  facts  do  not  controvert  any  allegation  of  the  complaint. 
It  is,  therefore,  new  matter  constituting  a  defense  to  the  action^ 
and,  under  the  Code,  is  inadmissible,  unless  set  up  in  the  answer. 
The  court,  therefore,  correctly  held  that  the  proof  offered  was 
inadmissible  under  the  answer.  The  motion  of  the  defendant, 
made  upon  the  trial  for  leave  to  amend  the  answer,  was  ad- 
dressed to  the  discretion  of  the  court,  and  its  exercise  cannot  be 
reversed  by  this  court.  The  answer  does  not  contain  a  general 
denial,  and,  therefore,  the  question  does  not  arise  whether  the 
provision  of  the  Revised  Statutes,  authorizing  public  officers, 
under  the  plea  of  the  general  issue,  to  give  any  defense  in  evi- 
dence, is  repealed  by  the  Code.  There  was  no  legal  error  com- 
mitted in  excluding  the  defense  in  this  case. 

Judgment  affirmed. 


SPARLING  V.  CONWAY. 
75  Mo.,  510.     [1882.] 

Hough,  J. :  This  was  an  action  for  malicious  prosecution.  The 
answer  was  a  general  denial,  and  the  defense  relied  upon  at  the 
trial  was,  that  the  defendant  acted  in  good  faith  upon  the  advice 
of  competent  counsel.  There  was  a  verdict  and  judgment  for  the 
defendant,  which  was  affirmed  by  the  court  of  appeals. 

The  plaintiff  contends  that  the  defense  stated  should  have 
been  pleaded  in  order  to  be  made  available  by  the  defendant. 
We  are  of  a  different  opinion.     The  testimony  offered  and  re- 


652 


TliU  AAbVVEU. 


[CllAl-.  IV. 


U^— ou  tv^>5:  ceived  onthis_subject  was  adniLssibk'  to  disprove  the  ;illtMz;ttiuii 
-'^^*~*r  J^     of  malice  contained  in  the  petition  and  souj,'ht  to  be  established 
^**"'^^^  «by  the  plaintiff,  and  if  the  defendant  had  set  it  forth  in  his 
■^  >>o-«>-o  answer,  he  would  only  have  pleaded  his  evidence.     •     •     • 
,v„^A-,LA>^-x_  v.rv.^^iuw-^  "it^"  ^^^^-'^'^'~^*^*"  -  cxyyv*_iLs»^,X  Judgment  affirmed. 

,3^    c^ ^iU> 1.         ^^         ^  i*^- 


LANGTON  V.  IIAGERTY. 

35  Wis.,  l'>0.    [1874.] 

Action  for  slander.    The  complaint  states  five  counts  or  causes 
of  action,  charj^'ing  the  speakinj;  of  the  same  words,  substan- 
tialh',  but  at  different  times,  and  in  the  presence  and  hearing  of 
A>*-°«-*^^*~\  different  persons.    The  introductory  averments  and  the  innuen- 
'%'^~^*^^  ^  does  are  the  same  in  each.     Hence,  a  perusal  of  one  count  will 
Ai\,3e>./vNA^-  show  the  structure  of  the  whole  complaint.     The  first  cause  of 
"^  action  is  as  follows :    * '  That  on  or  about  the  12th  day  of  October, 

'^'"^'^^  1872,  at  the  city  of  Green  Bay,  in  said  Brown  county,  the  de- 

fendant, wilfully  and  maliciously  designing  and  intending  to  in- 
3j,_  jure  and  degrade  this  plaintiff'  in  his  character,  and  to  bring 
Vy.^,.i:r    plaintiff  into  public  infamy  and  disgrace,  wilfully  and  malicious- 
-\r\js>xV.      ly  spoke,  published  and  declared  of  and  concerning  this  plaintiff", 
i>jk_  jvtE^^LS.  -  in  the  presence  and  hearing  of  one  N.  L.  Barber  and  divers  other 
A^  vao-*-o       persons,  the  false,  scandalous  and  defamatory'  words  following, 
:  <3L.  <iJ^^->A-^  to-wit:    *He  (meaning  the  plaintiff')  murdered  the  man  (mean- 
ing one  Michael  Nehill),  and  stole  all  of  his  money  from  him, 
and  I  saw  him  do  it,'  meaning,  intending  and  charging  thereby, 
that  this  plaintiff'  had  been  guilty  of  the  crimes  of  murder  and 
larceny;  that  plaintiff'  was  thereby  greatly  injured  in  his  good 
name,  fame  and  character,  to  his  damage  three  thousand  dol- 
lars." 

Each  count  is  separately  answered ;  but,  except  the  reference 

in  each  to  the  number  of  the  count  which  it  purports  to  answer, 

'^-^'^->-  the  answers  are  alike.    Each  contains  a  general  denial  of  the  al- 


-^. 


_  pcsxsc 


legations  of  the  count  to  which  it  responds,  and,  in  addition 
thereto,  the  following  averments:  "And  for  a  further  answer 
to  the  plaintiff's  (first)  alleged  cause  of  action,  the  defendant 
avers  that  before  the  speaking  of  the  words,  'he  murdered  the 
man,'  complained  of,  to-wit,  on  or  about  the  7th  day  of  Decem- 


Sec.  2.]  langton  v.  hagerty.  653 

ber  1868,  at  the  city  of  Green  Bay,  Browu  county,  in  this  state, 
the' plaintiff  above  named  did  shoot  and  kill  one  Michael  Nehill, 
and  whatever  was  said  by  the  defendant  in  relation  to  the  kiUmg 
of  the  said  Michael  Nehill  as  aforesaid,  was  said  to  the  plaintiff 
personallv,  believing  the  same  to  be  true,  and  without  any  malice 
towards  the  plaintiff  or  design  to  do  him  injury  in  his  good 
name,  fame,  credit  or  otherwise."  The  whole  answer  concludes 
with  a  notice  applicable  to  each  particular  answer,  which  is  as 
follows:  "All  of  which  above  facts  the  defendant  will  give  m 
evidence  on  the  trial  of  this  action  in  mitigation  of  any  damage 
the  said  plaintiff  may  by  law  be  entitled  to  recover  therein." 
•     •     « 

The  jury  found  for  the  plaintiff,  and  assessed  his  damages 
at  $500.  A  motion  to  set  aside  the  verdict  and  for  a  new  trial 
was  denied  by  the  court,  and  judgment  was  duly  entered  for  the 
plaintiff  pursuant  to  the  verdict. 

The  defendant  appealed  to  this  court. 

Lyon,  J. :  *  *  *  Under  the  pleadings  it  was  not  a  ques- 
tion for  the  jurv  whether  the  killing  of  Nehill  was  a  justifiable 
or  a  felonious  homicide.  The  defendant  dirl  not  aver  in  his 
answer  the  truth  of  the  words  spoken  by  him;  and,  failinc,^  to  do. 
i^  he  is  precluded,  by  well-settled  rules  of  law,  from  proving 
thatjhey  were  true.  He  is,  therefore,  in  precisely  the  same  posi- 
tion  as  though  he  had  expressly  admitted  in  his  answer  that  such 
killing  is  not  murder.  Further,  we  held  in  Wilson  v.  Noonan, 
that  extrinsic  facts  upon  which  the^defendant  relies  jo  mitigate 
the  damigs.  must  be  st^tod  m  tEF'an§wer,  or  they  will~55r5| 
ayaiTableJo  him.  The  answer  does  not  aver  that  the  killing  ot 
TfihlTl,  if  not  murder,  was  manslaughter.  Under  the  pleadings, 
all  that  the  court  could  do  was  to  submit  it  to  the  jury  to  say 
from  the  evidence  whether,  in  view  of  all  the  circumstances,  the 
defendant  could  honestly  have  believed,  and  whether  he  did  be- 
lieve, when  he  spoke  the  words,  that  the  plaintiff  had  been  guilty 
of  the  crimes  charged  against  him.  The  court  so  instructed  the 
jury  in  substance  and  effect,  and  properly  refused  to  submit  to 
them  the  question  of  the  character  of  the  homicide,  whether 
justifiable  or  criminal. 

A  very  considerable  portion  of  the  charge  to  the  jury  was  in 
strict  accordance  with  the  rules  of  law  above  stated,  and  that 
portion  requires  no  further  notice.     *     *     * 

Judgment  affirmed. 


654  THE  ANSWER.  [CUAP.  IV. 

BARR  V.  POST. 

56  Neb.,  698.     [1898.] 

Ragan,  C.  :  Prior  to  September,  1893,  "William  Barr  owned 
.,a-o..,_lic  -x  a  brick  block  in  the  city  of  Lincoln.  In  the  upper  story  of  this 
OLrv*«  block  were  a  number  of  lodging,'  rooms.     Barr  employed  Mrs. 

^  Martha  A.  Post  to  attend  to  these  rooms,  and  keep  them  in  order. 

She  was  intrusted  with  the  keys  to  the  various  lodging  rooms. 
For  some  reason,  her  services  became  unsatisfactory  to  Barr, 
'^*>Af-*^'^*-*^  and  he  discharged  her.     She,  however,  refused  to  surrender  to 
r-*:a-A.  5i/-<^-^^-a-Barr,  on  his  demand,  the  keys  for  the  various  lodging  rooms. 
-  '^^V^B-*^  On  the  6th  day  of  September  of  said  year,  Barr  attempted  to 
take  his  keys  out  of  the  hands  of  Mrs.  Post.     This,  however,  it 
seems,  he  failed  to  accomplish.     Mrs.  Post  brought  the  present 
action  to  the  district  court  of  Lancaster  county,  against  Barr, 
to  recover  damages  for  an  alleged  assault  and  battery  inflicted 
upon  her  by  Barr  at  the  time  he  attempted  to  take  from  her  pos- 
session the   lodging  keys.     She  had  judgment,  and  Barr  has 
brought  the  same  here  for  review  on  error. 

1.  On  the  trial,  the  district  court  refused  to  instruct  the  jury, 
at  the  request  of  Barr,  that  he  hiid  the  right  to  take  possession 
of  these  keys  from  ]\lrs.  Post,  provided,  in  doing  so,  he  did  not 
use  any  more  force  than  was  actually  necessary  for  that  purpose, 
nor  thereby  commit  a  breach  of  the  peace.  This  action  of  the 
court,  it  is  insisted,  was  erroneous.  The  ruling  of  the  court  in- 
volves the  right  of  a  citizen,  without  recourse  to  law,  to  seize  and 
take  possession  of  his  personal  property  wrongfully  in  the  pos- 
session of  another,  provided  in  doing  so,  he  does  not  commit  a 
breach  of  the  peace,  nor  use  any  greater  force  than  is  actually 
necessary  for  the  purpose  of  recaption.  It  seems  that  this  right 
of  recaption  of  personal  property  exists^  (]\Iussey  v.  Scott,  32 
Vt.,  84;  Cross  v.  Marston,  44  Am.  Dec,  353;  Manning  v.  Brown, 
47  Md.,  506 ;  Stearns  v.  Sampson,  8  Am.  Rep.,  442 ;  Sterling  v. 
Warden,  51  N.  H.,  217;  Hite  v.  Long,  18  Am.  Dec,  719.)  But 
the  record  here  does  not  present  for  decision  the  question 
whether  it  does.  Barr's  answer  to  the  charge  of  assault  and 
battery  was  a  general  denial,  and,  under  this  issue,  evidence 
which  tended  to  justify  the  assault  and  battery  was  inadmissible.. 


Sec.  2.j  barr  v.  post.  655 

(Levi  V.  Brooks,  121  Mass.,  501 ;  Cooper  v.  McKenna,  124  Mass., 
284.)  The  court,  therefore,  did  not  err  in  refusing  the  instruc- 
tions asked.     *    *    *  -^Jj^"^   liLev^wv.- 

Judgment  affirmed. 


KELLOGG  V.  SCHUERIVIAN. 
18  Wash,  293.     [1897.] 

Scott,  C.  J.:  This  action  was  brought  to  recover  damages 
for  malicious  prosecution.  The  appellant  Christian  Schuerman 
made  complaint  before  a  justice  of  the  peace,  charging  the  re- 
spondent  and  one  Pratley  with  burglary  in  entering  appellants'  ^^v^-v^^^^a^ 
dwelling  house.  A  warrant  was  issued,  and  the  respondent  and 
Pratley  were  arrested.  Pratley  was  discharged  upon  a  motion 
of  the  prosecuting  attorney,  and  the  justice  of  the  peace  dis- 
charged respondent,  who  thereafter  brought  this  action  and  re- 
covered damages  in  the  sum  of  $1,500;  whereupon  this  appeal 
was  taken. 

It  is  first  claimed  that  the  court  erred  in  admitting  in  evi- 
dence the  complaint  and  warrant  upon  which  the  respondent 
was  arrested;  but  there  is  no  merit  in  this  contention,  for  the 
defendants  admitted  the  proceedings  before  the  magistrate.  *  *  * 

Another  point  made,  which  it  might  be  well  to  notice,  is  the 
alleged  error  of  the  court  in  not  allowing  the  appellants  to 
prove  what  was  said  by  certain  detectives  to  the  prosecuting  at- 
torney, in  their  presence,  upon  their  statement  of  what  they  ^^^^^^^^ 
claimed  to  be  the  facts  relating  to  the  burglary ;  it  being  argued  ^^T^^^^^ 
that  this  proof  was  admissible  for  the  purpose  of  showing  prob-  ^^tT*'^ 
able  cause.    The  respondent  contends  that  it  was  not  admissible,  ^^>^*-*'  "-'^^ 


for  the  reason  that  the   defendants  had  not   alleged  probable,     _^     ^_,^ 

cause  for  instituting  the  prosecution  in  their  answer.  But^jmder^   6 

the  weight  of  authority,  we  are  of  the  opinion  that  they  wore 

entitled  to  shOW  this  under  a  general  dprriah    Trugdeu  V.  beck-" 

^d74b  Ind.,  b'i'2;  Kost  v.  HaPris,  12  Abb.  "Prac,  446 ;  Bruley  v. 

Rose,  57  Iowa,  651  (11  N.  W.,  629)  ;  Folger  v.  Washburn,  137 

Mass.,  60. 

It  is  also  contended  by  the  respondent  that  the  ruling  was 
harmless,  because  the  jurj'  in  certain  special  findings  found  that 
the  Schuermans  acted  maliciously,  that  no  burglary  had  been 


656  THE  ANSWER.  [ChAP.  IV. 

committed  or  attempted,  and  that  such  remarks  were  based  upon 
their  intentional  false  statements.  Of  course,  what  may  have 
been  said  by  the  officers  upon  their  fabricated  statements  could 
have  been  no  justification  for  the  prosecution.  Nor  was  the  ques- 
tion of  probable  cause  involved  at  all  if  the  Schuermans,  know- 
ing no  crime  had  been  attempted  by  the  plaintiff,  had  conspired 
to  get  him  convicted  upon  a  false  charge.  But  we  are  not  pre- 
pared to  say  that  all  the  statements  of  the  officers  sought  to 
be  proved  were  based  upon  what  Schuerman  and  his  wife  re- 
lated as  the  facts.  They  at  all  times  maintained  the  charge  to 
be  true,  and  whatever  facts  existed  independently  of  their  state- 
ments would  have  a  legitimate  bearing  to  support  such  conten- 
tion.   Eeversedj  and  remanded  for  a  new  trial. 


^p^   ^^• 


NICHOLS  V.  WINFREY. 
79  Mo.,  544.     [1883.] 

Phillips,  C.  :  This  action  was  begun  by  Josephine  Steinbeck, 
as  the  widow  of  James  Steinbeck,  deceased,  for  the  malicious, 
wrongful,  and  unjustifiable  killing  of  her  said  husband  in  Chari- 
ton county  on  the  17tli  day  of  July,  1876.  The  plaintiff  has  since 
intermarried  with  W.  H,  Nichols.  The  answer  contained  a  gen- 
eral denial,  and  then  pleaded  that  the  killing  was  done  in  the 
necessary  defence  of  defendant's  person,  and  in  the  defence  of 
his  house,  then  occupied  by  defendant,  after  being  assaulted 
therein  by  deceased.  The  venue  of  the  cause  was  transferred,  at 
plaintiff's  instance,  to  Livingston  county,  where,  on  trial  before 
a  jury,  the  plaintiff  recovered  judgment  for  $2,500,  from  which 
the  defendant  has  appealed  to  this  court.  The  controlling  fea- 
tures of  the  evidence,  as  also  the  instructions  to  be  reviewed  will 
appear  in  fheir  proper  connection  in  the  course  of  this 
opinion.     *     *     * 

III.  The  defendant  complains  of  the  fourth  instruction  con- 
ceded to  the  plaintiff,  in  which  the  jury  were  told  "that  before 
they  can  find  for  the  defendant  on  the  ground  of  self-defense, 
it  devolves  upon  him  to  establish,  by  a  preponderance  of  the 
testimony,  that,  at  the  time  he  shot  and  killed  Steinbeck,  Win- 
frey had  reasonable  cause  to  apprehend  a  design  on  the  part 


Sec.  2.]  nichols   v.   winfrey.  657 

of  Steinbeck  to  do  him  some  great  personal  injury,  and  had 
also  reasonable  cause  to  apprehend  immediate  danger  of  such 
design  being  accomplished." 

It  is  unnecessary  to  the  decision  of  the  propriety  of  this  in- 
struction, as  applied  to  the  facts  of  this  case,  to  pass  on  the  ques- 
tion as  to  whether  the  burden  of  proof  in  this  character  of  action 
rests  throughout  and  to  the  same  extent  on  the  plaintiff,  as  it 
does  on  the  prosecution  in  a  criminal  case.  It  may  be  affirmed 
that  the  prosecutor,  under  the  statute  for  ^'^^f'  y^onvprv  of  (]i\vn- 
ages,  jg_jiot  held  to  the  establishmpnt,  nf  thp  dpfpndnut's  guiU, 
beyond  a  reasonable  doubt.  He  is  only  required  to  make  out 
his  case  by  a  preponderance  of  the  evidence  to  the  satisfaction 

of  the  jury.  ^^^^  -lu,  ..j.,j=c 

The  allegation  of  the  petition  is  that  the  defendant,  "with  v^  .. 

force  and  arms,  violently,  maliciously,  unlawfully,  and  wrong-  \^     _,.,,,a,uj>.  <^ 
fully,  without  any  just  cause,  did  shoot  the  said  James  Stein-  ^,j-^j,y,._,L^^S>.ou<4-* 
beck."    The  answer  denied  generally  the  allegations  of  the  peti-  ^^v^o^ ^jjix,;^^ 
tion,  and  then  in  the  form  of  new  matter  pleaded  that  the  act  ^|^^-AAfl-*>*-M*/Ax 
was  done  in  self-defense  and  in  defense  of  defendant's  house,  in    ^  /s«-o>x>a^— ^^ 
which  he  was  unjustifiably  being  assaulted  bv  the  deceased.   This    ^^^^^^^^  -t;^.««Ar-t 
apparently  new  matter,  however,  was  in  legal  effect  embraced    j^^AX^  »j.i><»s 
in  the  general  denial,  and  would  have  been  admissible  in  evi-    >>^3j!rv^^  s^     * 
dence  thereunder.    These  matters,  too,  were  covered  by  the  aver-  ^-^^-'^"*-  t^.«Ar</x. 
ments  of  the  petition.     To  maintain  the  issues  on  the  plaintiff's  ^^  c^-'^ijw.. 
part  she  could  not  have  stopped  in  her  evidence  by  merely  prov-  «^-->~''-'~'-®-^-' 
ing  that  defendant  shot  and  killed  her  husband ;  for  by  the  terms    "iX-..^!^  c^ 
of  the  statute  under  which  she  sought  to  recover,  the  killing  must  -vv>e>:^  «*^  *^>^''^ 
have  been  wrongful,  and  the  allegations  of  the  petition  were  v-ft-».ft  ^  P-«-*V3 
that   the   killing   was   malicious,    wrongful,    and   without   just    /-v-fv^^Xjii^-v 


cause. 


*     *     * 


V""  ^ 


Judgment  reversed. 


;(.  WILSON  V.  C.  &  S.  RY.  CO. 

51  S.  C,  79.     [1897.] 

Gaky,  A\  J. :     This  action  was  commenced  on  the  26th  of a.>c^^^-«o->-  ^^ 
April,  1895,  and  was  tried  before  his  honor.  Judge  D.  A.  Towns-^^^-^A^^*^^^  '^"^^ 
end,  at  the  November,  1896,  term  of  the  court  for  Charleston  ^  ^-"Ar^   ^-^■■i-* 
county.     The  jury  rendered  a  verdict  in  favor  of  the  plaintiff  ^^^^'^'"*-*- 
42 


658  THE  ANSWER.  [Chap.  IV. 

for  $690.50.     The  defendant  has  appealed  to  this  court  on  ex- 
'vva/-^-«J^  ceptions  which,  together  with  the  complaint,  answer,  and  charge 

^^U^dJl-^  of  the  presiding  judge,  will  be  set  out  in  the  report  of  the  case. 

The  third  exception  was  abandoned.  The  exceptions  will  not  be 
considered  seriatim,  as  they  raise  practically  but  three  questions, 
which  will  be  hereinafter  stated. 

The  first  question  raised  by  the  exceptions  is :  Was  there  error 
on  the  part  of  the  presiding  judge  in  excluding  testimony  offered 
in  behalf  of  the  defendant  for  the  purpose  of  showing  that  the 
injury  was  caused  by  the  negligence  of  a  fellow  servant,  "on 
the  ground  that  it  referred  to  the  defense  of  'co-employe,'  which 
could  not  be  raised  under  the  pleadings?"  The  complaint  al- 
leges negligence  in  the  following  particulars,  to-wit:  (1)  That 
the  yard-master  of  said  company,  who  is  charged  with  the  direc- 
tion and  control  of  the  movement  of  all  switch  engines  and  the 
making  up  of  trains  within  the  said  yard  limits  of  the  defend- 
ant, was,  at  the  time  of  the  said  accident,  carelessly  and  negli- 
gently absent  from  his  post.  (2)  That  the  hostler  and  switch- 
man in  control  of  the  switch  engine  to  which  the  baggage  car  was 
attached  carelessly  and  negligently  uncoupled  it  from  the  tender, 
while  moving  at  a  rapid  and  dangerous  speed  <3own  the  main 
line,  on  which  the  plaintiff's  car  was.  (3)  That  there  was  no 
brakeman  or  other  attendant  on  or  in  charge  of  the  said  baggage 
car,  as  was  customary  in  the  making  up  of  trains.  The  "case" 
xjLya^d/ov-v.  shows  that  the  following  took  place  while  Mr.  C.  S.  Gadsden,  a 
^,^^.»jL -5^>~xJ^-  witness  for  the  defendant,  was  being  examined  by  defendant's 
attorney,  to-wit:  "Q.  Something  was  said  about  the  yard- 
master.  Is  it  his  duty  to  be  present  at  the  making  up  of  trains? 
A.  He  may  or  may  not,  as  he  sees  proper.  Q,  Under  whose 
control  are  all  these  people?  (Question  objected  to  on  the  ground 
that  it  referred  to  the  defense  of  co-employe,  which  could  not  be 
raised,  under  the  pleadings.  Objection  sustained.  Ruling  ex- 
cepted to. )  "  Not  only  was  the  testimony  which  the  defendant 
offered  to  introduce  admissible  on  the  ground  that  it  was  re- 
sponsive to  the  allegations  of  the  complaint  that  the  yard-master 
was  *  *  charged  with  the  direction  and  control  of  the  movement  of 
all  switch  engines  and  the  making  up  of  trains  within  the  said 
yard  limits  of  the  defendant, ' '  but  it  was  also  competent  for  the 
purpose  of  showing  a  failure  of  negligence  on  the  part  of  the  de- 
fendant, by  establishing  the  fact  that  the  injury  was  caused  by 
the  negligence  of  a  fellow  servant.     §  671,  Pom.  Eem.,  contains 


Sec.  2.]  wilson  v.  c.  &  s.  ry.  co.  659 

the  following:  "  *  *  *  Evidence  which  is  in  its  nature 
affirmative  is  often  confounded  with  defenses  which  are  essen- 
tially affirmative,  and  in  avoidance  of  the  plaintiff's  cause  of 
action,  and  is  therefore  mistakenly  regarded  as  new  matter,  re- 
quiring to  be  specially  pleaded,  although  its  effect  upon  the 
issues  is  strictly  negative,  and  it  is  entirely  admissible  under  an 
answer  of  denial.  In  other  words,  in  order  that  evidence  may 
be  proved  under  a  denial,  it  need  not  be,  in  its  nature,  negative. 
Affirmative  evidence  may  often  be  used  to  contradict  an  allega- 
tion of  the  complaint,  and  may,  therefore,  be  proved  to  main- 
tain the  negative  issue  raised  by  the  defendant's  denial.  One 
or  two  familiar  examples  will  sufficiently  illustrate  the  proposi- 
tions. In  certain  actions,  property  in  the  plaintiff,  in  respect  of 
the  goods,  which  are  the  subject  matter  of  the  controversy,  is  an 
essential  element  of  his  claim.  His  complaint,  therefore,  avers 
property  in  himself.  The  allegation  is  material,  and  is,  of 
course,  put  in  issue  by  the  general  or  specific  denial.  To  main- 
tain this  issue  on  his  part  the  plaintiff  may  give  evidence  tend- 
ing to  show  that  he  is  the  absolute  owner,  or  has  the  requisite 
qualified  property.  The  defendant  may  controvert  this  fact  in 
two  modes.  He  may  simply  contradict  and  destroy  the  effect  of 
the  plaintiff's  proof,  and  in  this  purely  negative  manner  pro- 
cure, if  possible,  a  decision  in  his  own  favor  upon  this  issue. 
The  result  would  be  a  denial  of  the  plaintiff's  recovery  by  his 
failure  to  maintain  the  averment  of  his  pleadings;  but  the  jury 
or  court  would  not  be  called  upon  to  find  that  the  property  was 
in  any  other  person.  The  decision  would  simply  be  that  the 
plaintiff  had  not  shown  it  to  be  in  himself.  On  the  other  hand, 
the  defendant,  not  attempting  directly  to  deny  the  testimony  of 
the  plaintiff's  witnesses,  and  to  overpower  its  effect  by  directly 
contradictory  proof,  may  introduce  evidence  tending  to  show 
that  the  property  in  the  goods  is,  in  fact,  in  a  third  person.  This 
evidence,  if  convincing,  would  defeat  the  plaintiff's  recovery.  It 
would  be  affirmative  in  its  direct  nature,  but  its  ultimate  effect 
in  the  trial  of  the  issue  raised  by  the  answer  would  be  to  deny 
the  truth  of  the  plaintiff's  averment.  Such  evidence,  although 
immediately  affirmative,  would  still,  for  the  purpose  of  determin- 
ing the  issue  presented  by  the  pleadings,  be  negative.  *  *  *  " 
Section  675  of  the  same  author  contains  the  following,  to-wit: 
"In  actions  for  injuries  to  person  or  property,  alleged  to  have 
resulted  from  the  defendant's  negligence,  he  may  prove,  under 


G60 


THE  ANSWER, 


[Chap.  IV. 


a  general  denial,  that  the  wrong  was  caused  by  the  negligence 
of  third  persons,  not  agents^  of  the  defendant,  and  for  whom 
he  is  not  responsible.     *     *     *  "     In  the  case  of  Sheehan  v. 
Prosser,  55  Mo.  App.,  569,  Mr.  Justice  Biggs,  in  delivering  the 
-opinion  of  the  court,  said :     ' '  The  defense  that  the  plaintiff  was 
injured  through  the  negligence  of  a  fellow  servant  was  avail- 
able to  the  defendant  without  havjpg  hppn   sppr^ially  plpfldfri. 
Proof  of  that  fact  necessarily  disproved  the  averment  that  the 
plaintiff  w^as  injured  through  the  negligence  of  the  defendant." 
This  view  is  sustained  by  Express  Co.  v.  Darnell,  31  Ind.,  20. 
The  authorities  are,  however,  conflicting,  as  will  be  seen  by  refer- 
ence to  the  case  of  Conlin  v.  Railroad  Co.,  36  Cal.,  404,  which 
sustains  a  contrary  doctrine.     The  reason  why  testimony  is  ad- 
missible, under  a  general  denial,  to  prove  that  the  injury  was 
caused  by  the  negligence  of  a  fellow  servant  is  because  its  tend- 
ency is  to  show  that  there  was  no  negligence  whatever  on  the 
part  of  the  defendant."   On  the  other  hand,  the  reason  why  it  is 
'  necessary  to  set  forth  in  the  answer  the  defence  of  contributory 
'uegTigence  on  the  part  of  the  plaintiff  is  bpj^ansp  testimony  show- 
ing such  contributory  negligence  does  not  disprove  the  allega- 
Itions  of  the  complaint  that  the  injury  was  caused  by  the  negli- 
jo-PiTPP  nf  flip  f}^f^^r\f]a■\^t.     The  defendant,  by  setting  up  in  his 
I  answer  the  defense  of  contributory  negligence  on  the  part  of  the 
plaintiff,  does  not  attempt  to  escape  liability  by  showing  a  fail- 
ure of  negligence  on  his  part,  but  because  the  plaintiff  has  done 
that  which  prevents  a  recovery  against  him,  although  he  (the  de- 
fendant) may  have  been  guilty  of  negligence.    Such  facts  would 
constitute  an  affirmative  defense,  of  which  the  defendant  could 
not  get  the  benefit,  unless  it  was  set  up  in  the  answer.     The  ex- 
.  ceptions  raising  the  first  question  are  sustained.     *     *     * 

Judgment  reversed.^ 


*Valliant.  J.  (in  Allen  v.  Transit  Co..  1S3  Mo.  411) : 
In  the  brief  for  respondent  it  is  contended  that  the  statements  in 
the  answer  amount  to  a  confession  of  the  plaintiff's  right  to  recover 
and  that  the  only  question  left  open  is  as  to  the  amount  of  damages. 
The  idea  advanced  is  that  the  statements  in  the  plea  of  contributory 
negligence  assume  that  the  arrangement  or  plan  of  the  car  was  a  dan- 
gerous contrivance  and,  therefore,  the  defendants  were  guilty  of  negli- 
gence in  putting  it  into  public  service.  It  would  seem  on  reason  that 
any  plea  of  contributory  negligence  must  be  a  plea  of  confession  and 
avoidance.  If  the  facts  stated  in  the  plea  only  go  to  show  that  it  was 
the  plaintiff's  own  negligence  and  nothing  more  that  caused  the  acci- 


Sec.  2.]  johnson  v.  iiiLLEE.  661 

JOHNSON  V.  MILLER. 
47  Ind.,  376.     [1874.] 

WoRDEN,  J.:  Action  by  the  appellee  against  the  appellants. 
The  defendants  were  ^largaret  J.  Johnson,  James  Johnson, 
David  Fessler,  John  Little,  Sr.,  and  Sarah  J.  Hobbs,  all  of  whom 
join  in  this  appeal. 

The  complaint  alleges,  in  substance,  that  one  Yv'illiam  Hobbs 
was  the  equitable  owner  of  a  parcel  of  land  described,  the  legal 
title  to  which  was  in  Joseph  P.  Ring;  that  Ring,  at  the  request 
of  Hobbs,  conveyed  the  land  to  the  defendant  jMargaret  J.  John- 
son; and  to  secure  a  part  of  the  purchase  money  the  said  Mar- 
garet J.  Johnson,  together  with  Fessler  and  Little,  executed  to 
Ring  a  promissory  note,  a  copy  of  which  is  set  out,  and  that 
Ring,  by  the  direction  of  the  owner  of  the  note  (Hobbs,  we  sup- 
pose,) assigned  the  note  to  the  plaintiff,  which  remains  due  and 
unpaid. 

It  is  alleged  that  Sarah  J.  Hobbs,  as  the  widow  of  William 
Hobbs,  claims  an  interest  in  the  land,  hence  she  is  made  a  party, 
and  required  to  answer.  Prayer  for  judgment  on  the  note 
against  the  makers  thereof,  and  that  Mi's.  Hobbs  be  enjoined 
from  setting  up  or  asserting  any  claim  to  the  land. 

The  defendants  all  answered,  Mrs.  Hobbs  setting  up  a  claim  to 
one-third  of  the  land  as  the  widow  of  her  deceased  husband,  Wil- 
liam Hobbs,  and  Mrs.  Johnson  setting  up  a  breach  of  the  coven- 
ants in  her  deed,  by  reason  of  the  interest  of  Mrs.  Hobbs  in  the 
land,  but  averring  a  readiness  to  pay  whatever  might  be  due  on 
the  note  upon  receiving  a  conveyance  of  that  interest. 

dent  those  facts  could  be  proven  under  the  general  denial,  because  if 
it  was  the  plaintiff's  negligence  only,  it  was  in  no  part  defendant's 
negligence.  Under  a  general  denial  the  defendant  may  prove  any  fact 
which  shows  that  the  plaintiff  never  had  any  cause  of  action.  But 
where  an  affirmative  defense  is  offered  it  logically  carries  the  idea 
that  a  cause  of  action  once  existed,  but  has  ceased  because  of  the  facts 
pleaded  in  the  answer  or  that  a  cause  of  action  would  have  arisen  out 
of  the  facts  set  out  in  the  petition  but  for  the  additional  contem- 
poraneous facts  pleaded  in  the  answer.  Perhaps  under  the  provision  of 
our  code  (sec.  626,  R.  S.  1899),  authorizing  a  party  to  plead  alter- 
natively, it  would  be  proper  for  a  defendant  in  his  answer  to  deny  the 
cause  of  action  and  yet  say  that  because  of  certain  other  facts  if  the 
plaintiff  ever  had  a  cause  of  action  it  has  ceased,  or  that  he  would 
have  had  a  cause  of  action  but  for  the  facts  stated  in  the  answer. 


662  THE  ANSWER.  [ChAP.  IV. 

We  need  not  further  notice  the  pleadings,  though  error  is 
assigned  upon  some  rulings  on  demurrers,  because  the  counsel 
for  the  appellants  say  that  the  third  error  assigned  really  pre- 
sents their  case,  and  we  agree  with  the  counsel  in  that  respect. 

The  third  error  is  assigned  upon  the  overruling  of  the  appel- 
lant's motion  for  a  new  trial. 

Upon  issue  joined,  the  cause  was  tried  by  the  court,  who  found 
for  the  plaintiff  the  amount  remaining  due  on  the  note  against 
the  makers,  and  that  Mrs.  Hobbs  had  no  interest  in  the  property, 
and  rendered  judgment  for  the  recovery  of  the  money,  and  that 
Mrs.  Hobbs  be  forever  enjoined  from  setting  up  any  claim  to 
the  land. 

One  of  the  reasons  assigned  for  a  new  trial  was  the  admission 
of  the  note  sued  upon  in  evidence. 

The  ground  of  this  objection  was,  that  Mrs.  Johnson,  the  prin- 
cipal in  the  note,  was  a  married  woman,  and  therefore  could 
not  make  a  valid  note.  It  is  a  sufficient  answer  to  this  objection 
to  say,  that  her  coverture  was  not  pleaded  either  by  Mrs.  Johnson 
or  her  sureties.  Little  and  Fessler.  Coverture  is  a  special  de- 
fence that  must  be  pleaded,  and  evidence  of  it  can  not  be  given 
under  a  general  denial.  Had  it  been  pleaded,  we  do  not  see 
how  it  could  have  been  available  to  discharge  Little  and  Fessler 
from  their  obligation.     *     *     * 

Beversed  {on  other  grounds.) 


SCHWAKZ  V.  OPPOLD. 

74  N.  Y.  307.     [1878.] 

Rapallo,  J.:  The  question  whether  the  verdict  was  against 
the  weight  of  the  evidence  cannot  be  considered  on  this  appeal. 
The  General  Term,  having  reversed  the  order  at  Special  Term 
granting  a  new  trial,  must  have  been  of  opinion  that  the  verdict 
was  not  against  the  weight  of  the  evidence.  That  question  the 
General  Term  had  power  to  decide,  and  its  determination  there- 
on is  final.  The  only  points  before  us  are  those  which  arise  on 
the  exceptions  taken  at  the  trial. 

The  exception  mainly  relied  upon  was  to  the  admission  of  the 
evidence  of  the  defendant  Wilhelm  Oppold  to  the  effect  that  the 


Sec,  2.]  schwarz  v.  oppold.  663 

words  "with  interest"  which  appear  at  the  end  of  the  note 
given  in  evidence  were  not  there  when  he  signed  it.  The  ob- 
jection taken  was  that  no  such  defense  was  pleaded. 

The  complaint  set  forth  a  note  payable  on  demand  with  inter- 
est. The  answer  of  the  maker,  Wilhelm  Oppold,  contained  a 
general  denial.  The  note  put  in  evidence  purported  to  be  pay- 
able with  interest  as  alleged  in  the  complaint.  It  was  clearly 
competent  for  the  defendant  under  his  general  denial  to  contro- 
vert this  proof  by  showing  that  the  note  had  been  altered  since 
its  execution  by  adding  the  words  ' '  with  interest. ' '  This  altera- 
tion, which  was  established  by  the  finding  of  the  jury,  clearly 
destroyed  the  effect  of  the  note  as  evidence,  and  precluded  any 
recovery  thereon  in  the  absence  of  sufficient  explanation  of  the 
alteration.     *     *     * 

Judgment  affirmed. 


SCOTT  V.  MORSE. 
54  la.  732.     [1880.] 

The  petition  of  plaintiff  alleges  in  substance  that  in  the  fore- 
part of  the  year  1878,  as  a  member  of  the  firm  of  Montgomery 
&  Scott,  attorneys  at  law,  the  plaintiff,  at  the  request  of  defend- 
ants, rendered  professional  services  to  them  about  the  preparation 
of  a  petition  for  rehearing  in  a  case  entitled  Grouse  v.  Morse, 
pending  in  the  supreme  court,  which  services  were  worth  $300 ; 
that  afterwards,  on  the  fourteenth  day  of  April,  1878,  the  firm 
of  Montgomery  &  Scott  was  dissolved,  and  the  said  claim  was 
assigned  to  plaintiff  and  became  his  property.  The  plaintiff 
demands  judgment  for  $300  and  interest.  The  defendants  filed 
an  answer  denying  all  the  allegations  of  the  petition.  The  cause 
was  tried  to  a  jury  and  a  verdict  was  returned  for  the  plaintiff 
for  $134.37.  The  motion  for  a  new  trial  was  overruled,  and 
judgment  was  entered  upon  the  verdict.    The  defendants  appeal. 

Day,  J.  It  is  claimed  by  the  defendants  that  B.  F.  Mont- 
gomery, a  member  of  the  firm  of  Montgomery  &  Scott,  agreed 
that  his  firm  should  render  for  defendants  the  services  in  ques- 
tion without  charge ;  and  it  is  insisted  that  there  is  no  contradic- 
tion of  the  testimony  of  Montgomery  that  he  agreed  on  behalf 
of  his  firm  that  the  services  should  be  rendered  without  compen- 


664  THE  ANSWER.  [ChAP.  IV. 

sation.  It  is  claimed  that  upon  this  branch  of  the  case  the  verdict 
is  oposed  to  the  uncontradicted  testimony,  and  therefore  is  not 
supported  by  the  evidence.  The  only  pleading  interposed  by  the 
defendants  i,s  a  general  denial  of  all  the  allegations  of  the  peti- 
tion. This  denial  simply  puts  in  issue  the  fact  of  the  rendition 
of  the  services,  their  value,  and  that  the  claim  tlierefor  has  been 
assigned  to  the  plaintiff.  If  the  defendants  intended  to  rely 
upon  the  fact  that  there  was  an  agreement  that  the  services  in 
question  should  be  rendered  without  compensation,  such  defence 
should  have  been  specially  pleaded.  "Any  defence  which  admits 
the  facts  of  the  adverse  pleading,  but  by  some  other  matter  seeks 
to  avoid  their  legal  effect,  must  be  specially  pleaded."  Code, 
§  2718. 

The  case  falls  fully  within  the  principle  of  Parker  v.  Hendrie, 
3  Iowa,  263.  In  that  case,  as  in  this,  evidence  was  introduced 
and  instructions  were  given  on  an  issue  not  tendered  by  the 
pleadings.  A  verdict  was  returned  for  the  plaintiff,  which  the 
defendant  moved  to  set  aside  on  the  ground  that  it  was  against 
the  law  and  evidence.  The  motion  was  overruled.  On  the  ques- 
tion presented  the  following  language  is  employed :  ' '  The  testi- 
mony as  to  the  agreement  to  return  the  machine,  and  the  instruc- 
tions based  thereon,  relate  to  an  issue  not  made,  or  attempted 
to  be  made,  by  the  pleadings.  The  testimony  was,  therefore,  im- 
material. To  justify  the  granting  of  a  new  trial,  on  the  ground 
that  the  verdict  is  against  the  weight  of  the  evidence,  such  want 
of  evidence  must  relate  to  a  material  issue,  legitimately  made  by 
the  pleadings.  It  is  the  issues  of  fact  made  by  the  pleadings 
which  the  jury  are  to  determine,  and  not  others  or  different 
ones."  This  case  we  regard  as  decisive  of  the  question  now  in- 
volved. 

AiJirmed* 

*Devens,  J.  (in  Phipps  v.  Mahon,  141  Mass.  471) : 
"The  defendant  relied  upon  an  alleged  agreement  between  himself 
and  the  plaintiff,  by  which  the  latter  was  to  do  the  work  sued  for, 
under  a  special  contract,  for  a  sum  certain,  which  the  plaintiff  had 
already  received.  It  was  for  the  defendant  to  offer  some  evidence  to 
rebut  the  inference  to  be  deduced  from  the  facts  proved  by  the  plain- 
tiff. He  did  not  seek  to  avoid  the  contract  alleged  by  plaintiff,  or  the 
effect  of  it,  but  to  disprove  its  existence.  While  in  form  his  evidence 
was  affirmative,  the  use  he  sought  to  make  of  it  was  strictly  negative, 
and  was  for  the  purpose  only  of  rebutting  the  plaintiff's  proposition 
as  deduced  from  the  evidence  offered  by  him.    The  burden  was  still 


Sec.  2.]  finley  v.  quirk.  66: 


FINLEY  V.  QUIRK. 

9  Minn.  194.     [1864.] 

Wilson,  J.  Action  for  breach  of  warranty  of  a  horse.  The 
suit  was  origially  commenced  in  justice's  court,  and  after  judg- 
ment removed  by  appeal  into  the  district  court  of  Rice  County. 
In  the  complaint  the  plaintiff  "charged  that  the  defendant  in 
sale  of  a  horse  to  him  warranted  the  horse  to  be  sound,  perfect 
in  every  respect,  and  true,  gentle,  and  willing  to  work — all  which 
representations  he  knew  to  be  false."  Defendant  in  his  answer 
"denied  the  warranty  and  all  knowledge  of  any  defects,  and 
alleged  that  at  the  time  of  sale  the  horse  was  sound,  gentle,  and 
willing  to  work."  Verdict  was  rendered  in  the  district  court 
for  the  plaintiff,  and  the  defendant  thereupon  moved  the  court 
for  a  new  trial.  The  motion  was  denied,  and  the  defendant 
appealed  to  this  court. 

The  grounds  for  a  new  trial  urged  in  this  court  are:  Firsts 
error  in  law  occurring  at  the  trial  and  excepted  to ;  second,  that 
the  evidence  was  not  sufficient  to  justify  the  verdict.  These  ob- 
jections we  will  examine  in  the  inverse  order  of  their  statement. 
*  *  *  Third,  in  the  examination  of  the  plaintiff's  witnesses, 
it  appeared  that  on  Saturday  the  parties  met,  and  the  plaintiff 
agreed  to  purchase  and  the  defendant  to  sell  the  horse  at  a  price 
agreed  upon.  The  plaintiff'  then  paid  $5  to  "bind  the  bargain," 
agreeing  to  pay  the  balance  of  the  purchase  money  on  the  next 
day,  when  the  horse  was  to  be  delivered.  The  horse  was  delivered, 
and  the  purchase  money  paid,  on  the  next  day  (the  Sabbath), 
in  pursuance  of  the  contract. 

When  the  plaintiff  closed  his  evidence  and  rested  his  case  the 
defendant  moved  the  court  for  judgment  on  the  ground  that 
the  evidence  showed  that  the  bargain  was  consummated  on  Sun- 
day. The  motion  was  denied,  and  defendant  excepted.  This  is 
the  principal  point  in  the  case;  we  think  the  only  one  relied 

upon  the  plaintiff  to  prove  the  contract  alleged  by  him,  upon  all  the 
evidence  in  the  case.  If  we  suppose  this  evidence  to  be  equally  bal- 
anced, he  could  not  recover,  as  he  has  failed  to  prove  that  which  is 
essential.  In  an  action  for  labor  and  services  rendered,  where  the 
plaintiff  seeks  to  recover  what  they  are  reasonably  worth,  he  cannot 
do  so  if  the  whole  evidence  leaves  it  in  doubt  whether  they  were  not 
gratuitously  rendered." 


666  THE  ANSWER.  [ChAP.  IV. 

upon  by  defendant's  counsel.  The  sale  of  a  horse  consummated 
on  the  Sabbath  is  void,  and  an  action  on  the  warranty  in  such 
sale  will  not  lie.  Comp.  Stat.  730,  §  19 ;  Smith  v.  Wilcox,  24 
N.  Y.  353;  Northrup  v.  Foot,  14  Wend.  248;  Brimhall  v.  Van 
Campen,  8  Minn.  (13);  Finney  v.  Callendar,  id  (41).  It  is 
claimed  by  the  counsel  for  the  plaintiff  that  this  point  was  not 
in  issue,  and  therefore  that  the  evidence  touching  it  was  irrele- 
vant. It  is  doubtless  true  that  evidence  must  correspond  with 
the  allegations,  and  he  confined  to  the  point  in  issue,  and  if  in 
the  examination  of  witnesses  facts  come  out  which,  had  they 
been  alleged,  would  furnish  ground  of  relief  or  defense,  such 
facts  must  be  disregarded  unless  they  are  warranted  by  the 
allegations  of  the  pleadings.  Stuart  v.  Merchants'  and  Farmers' 
Bank,  19  Johns.  505 ;  Field  v.  Mayor  of  N.  Y.,  6  N.  Y.  179. 

The  defendant  insists  that  the  answer  does  not  admit  a  valid 
contract.  We  will  for  the  present  take  this  for  granted,  and 
examine  the  case  in  that  point  of  view.  The  case  therefore  turns 
on  the  question  whether  it  was  necessary  to  specifically  aver 
in  the  answer  the  facts  establishing  this  defense. 

We  think  this  must  be  answered  in  the  affirmative,  whether  it 
is  viewed  as  a  question  of  principle  or  by  the  light  of  authority. 
Our  statute  provides,  that  "the  complaint  must  contain  a  state- 
ment of  the  facts  constituting  the  cause  of  action  in  ordinary 
and  concise  language,  etc.;  that  the  answer  must  contain  (1)  a 
denial  of  each  allegation  of  the  complaint  controverted,  and  (2) 
a  statement  of  any  new  matter  constituting  a  defense,"  etc.;  that 
"an  issue  of  fact  arises  upon  a  material  allegation  of  the  com- 
plaint controverted  by  the  answer,"  etc. 

It  will  be  observed  that  the  plaintiff  can  only  allege  facts,  and 
that  in  the  answer  the  defendant  must  either  deny  the  facts 
alleged  in  the  complaint,  or  allege  new  matter  by  way  of  defense 
or  avoidance.  And  when  the  answer  consists  merely  of  a  denial, 
it  is  quite  clear  that  the  plaintiff  will  only  be  required  to  prove, 
and  the  defendant  only  permitted  to  controvert,  the  facts  alleged 
in  the  complaint.  Allen  v.  Patterson,  7  N.  Y.  478;  Mulry  v. 
Mohawk  Valley  Ins.  Co.,  5  Gray,  544.  In  the  language  of  Mr. 
Justice  Selden,  in  case  of  Benedict  v.  Seymour,  6  How,  Pr.  R. 
298,  "A  general  traverse  under  the  code  authorized  the  introduc- 
tion of  no  evidence  on  the  part  of  the  defendant,  except  such  as 
tends  directly  to  disprove  some  fact  alleged  in  the  complaint.'' 
If  the  question  of  the  legality  of  the  sale  can  be  raised  by  a 


Sec.  2. J  finley   v.   quirk.  667 

denial  of  any  allegation  of  the  complaint,  it  must  be  by  a  denial 
of  the  sale,  for  the  day  or  time  of  the  sale  is  not  a  material  or 
traversable  fact.  1  Chitty  PL  613-14,  621;  1  Barb,  Ch.  Pr.  136; 
2  Sauud.  219 ;  Steph.  PI.  244-45 ;  Newman  v.  Otto,  4  Sandf .  688. 

We  have  above  seen  that  an  issue  of  fact  arises  only  upon  a 
material  allegation  of  the  complaint  controverted  by  the  answer, 
and  in  this  case  the  legality  of  the  sale  is  not  alleged,  and  of 
course  is  not  and  could  not  be  denied  or  controverted.  Nor  is 
such  an  allegation  necessary,  foi  it  is  a  well  established  rule  of 
pleading  that  it  is  not  necessary  to  allege  what  the  law  will  pre- 
sume, and  everything  is  presumed  to  have  been  legally  done  until 
the  contrary  is  proved.  1  Chitty  PI.  221;  Maynard  v.  Tolcott, 
11  Barb.  569 ;  Steph.  PI.  353-54 ;  1  Van  Sant.  PI.  330.  But  even 
if  it  was  admitted  that  the  defendant  might  by  a  mere  denial 
raise  an  issue  on  a  fact  not  specifically  alleged,  yet  the  legality 
of  the  sale  is  not  a  traversable  fact  but  a  conclusion  or  inference 
of  law.  1  Chitty  PI.  213-14,  540;  Ensign  v.  Sherman,  13  How. 
Pr.  K.  35;  Mann  v.  Morewood,  5  Sandf.  564;  Lienan  v.  Lincoln, 
2  Duer,  670;  Lawrence  v.  Wright,  id.  673;  Moss  v.  Riddle,  5 
Cranch,  351 ;  Major  v.  The  State,  8  Blackf .  72.  And  a  traverse 
or  denial  can  only  be  of  matter  of  fact  and  not  of  conclusion  of 
law.  1  Chitty  PI.  612;  Steph.  PL  191;  1  Barb.  Ch.  Pr.  133; 
Comp.  Stat.  541 ;  Moss  v.  Riddle,  and  Major  v.  The  State,  above. 

The  true  object  of  pleading  is  and  always  has  been  to  apprise 
the  adverse  party  of  the  ground  of  action  or  defense,  in  order 
that  he  may  be  prepared  to  contest  it,  and  may  not  be  taken  by 
surprise.  1  Chitty  PL  478,  213;  Mann  v.  Morewood,  5  Sandf. 
564 ;  Story  Eq.  §§  255-57,  852 ;  1  Barb.  Ch.  Pr.  137.  The  rules 
of  pleading  will  generally  be  found  to  be  ancillary  to  or  the 
logical  sequence  of  this  cardinal  principle  or  rule.  Facts  are 
only  to  be  stated  in  pleadings,  and  not  arguments,  inference,  or 
matters  of  law.  1  Chitty  PL  214 ;  Story  Eq.  PL  852 ;  Lienan  v. 
Lincoln,  2  Duer,  670;  Lawrence  v.  Wright,  id.  673;  because  the 
statement  of  facts  is  necessary  to  apprise  the  adverse  party  of 
the  ground  of  action  or  defense.  Mr.  Justice  Buller  well  says 
that  it  is  "one  of  the  first  principles  of  pleading  that  there  Ls 
only  occasion  to  state  facts,  which  must  be  done  for  the  purpose 
of  informing  the  court  whose  duty  it  is  to  declare  the  law  arising 
upon  those  facts,  and  of  apprising  the  opposite  party  of  what  is 
meant  to  be  proved  in  order  to  give  him  an  opportunity  to  answer 
or  traverse  it."    Doug.  159;  1  Chitty  PL  213.    With  the  same 


ggg  THE  ANSWER.  [ChAP.  IV. 

object  in  view  our  legislature  provides  that  every  ground  of  ac- 
tion or  defense  should  be  stated  ''in  ordinary  and  concise  lan- 
guage, and  in  such  a  manner  as  to  enable  a  person  of  common 
understanding  to  know  what  is  intended. 

The  answer  in  this  case  gives  no  intimation  of  the  nature  of 
the  defense  relied  upon,  or  that  any  defense  is  to  be  interposed 
except  by  disproof  of  the  facts  alleged  in  the  complaint.  Such  a 
defense  is  not  admissible  under  an  answer  merely  by  way  of 
denial.  It  is  not  in  principle  distinguishable  from  any  other 
which  admits  a  contract  in  point  of  fact,  that  is  alleged  to  be 
void  in  point  of  law ;  as,  for  instance,  usury,  gaming,  stock  job- 
bing, coverture,  fraud,  etc.  The  facts  tending  to  establish  any 
such  defense  are,  in  their  nature,  "new  matter  constituting  a 
defense,"  or,  to  use  an  expression  more  common  in  the  law,  and 
having  the  same  meaning,  "matter  in  confession  and  avoidance." 
Catlin  V.  Gunter,  11  N.  Y.  368;  Tidd.  Pr.  643,  685;  Fay  v.  Grim- 
steed,  10  Barb.  321 ;  Gould  v.  Horner,  12  Barb.  602 ;  Watson  v. 
Bailey,  2  Duer,  509.  The  principles  of  pleading  in  courts  of 
law  and  equity,  and  the  express  provisions  of  our  statute,  require 
that  such  matter  should  be  specifically  averred  in  the  answer. 
See  cases  last  above  cited.  Gouverneur  v.  Elmendorf,  5  Johns. 
Ch.  79;  Stuart  v.  Merchants'  &  Farmers'  Bank,  19  Johns,  496; 
Richards  v.  Worthley,  5  Wis.  73;  Steph.  PI.  213;  Mulry  v.  Mo- 
hawk Valley  Ins.  Co.,  5  Gray,  541 ;  Bradford  v.  Tinkham,  6  Gray, 
494 ;  1  Chitty  PI.  526 ;  id.  213.  Thus  07ily  can  the  answer  ap- 
prise the  plaintiff  of  the  ground  of  defense,  which  we  have  seen 
is  the  true  object  of  pleading.  This  general  rule,  and  the  neces- 
sity for  its  observance,  are  well  illustrated  and  impressed  by  the 
case  before  us.  It  is  true  that  at  common  law,  in  assumpsit  on 
the  general  issue,  matters  of  defense  of  this  character  may  be 
given  in  evidence. 

But  these  rulings  are  not  applicable  as  precedents  in  this  case ; 
because — first,  the  general  issue  cannot  be  pleaded  under  our 
statute ;  second,  the  rules  of  pleading  under  the  general  issue  at 
common  law  have  always  been  admitted  to  be  at  variance  with 
the  principles  and  logic  of  that  system  of  pleading  (Steph.  PI. 
158;  1  Chitty  PI.  526,  473,  478-9,  213)  ;  and  third,  by  the  rules 
of  Hil.  T.  4  W.  4,  in  England  "this  abuse  has  been  corrected," 
and  matters  of  defense  of  this  character  must  now  be  specially 
pleaded  (see  said  rules)  ;  fourth,  at  common  law  (irrespective  of 
the  rules  of  H.  T.),  where  there  is  a  contract  in  point  of  fact, 


Sec.  2.]  finley  v.  quirk.  669 

as  in  this  case,  the  defendant  has  the  option  either  to  plead  the 
general  issue,  or  to  plead  specially  any  matter  showing  it  void 
or  voidable  in  point  of  law  (Tidd  Pr.  643;  1  Chitty  PI.  526;  id. 
213-14),  which  is  a  recognition  of  the  principle,  by  us  held  in 
this  case,  that  such  special  matter  is  not  by  way  of  denial,  but 
by  way  of  avoidance  of  the  matters  alleged  in  the  complaint.* 
For  that  which  is  only  a  traverse  or  denial  of  the  allegations  of 
the  complaint  can  never  be  specially  pleaded  at  common  law. 
Steph.  PL  202-3;  Bank  of  Auburn  v.  Weed,  19  Johns.  300;  1 
Chit.  PI.  527 :  Tidd  Pr.  653-4. 

We  hold,  therefore — first,  that  an  answer,  merely  by  way  of 
denial,  raises  an  issue  only  on  the  facts  alleged  in  the  complaint ; 
second,  that  the  denial  of  the  sale  of  the  horse  in  this  case  only 
raised  an  issue  on  the  sale  in  point  of  fact,  and  not  on  the  ques- 
tion of  the  legality  of  such  sale;  third,  that  all  matters  in  con- 
fession and  avoidance,  showing  the  contract  sued  upon  to  be 
either  void  or  voidable  in  point  of  law,  must  be  affirmatively 
pleaded. 

We  have  thus  far  treated  the  case  as  if  the  answer  denied  each 
allegation  of  the  complaint.  This,  we  think,  cannot  be  admitted. 
The  only  facts  controverted  are — fiist,  the  warranty;  second,  the 
breach  of  warranty.  These  facts,  only,  the  plaintiff  was  required 
to  prove.  A  sale  of  the  horse  was  admitted,  and  whether  that 
sale  was  void  or  valid  was  not  a  question  in  the  case. 

The  decision  of  the  court  below  was,  therefore,  correct  in  any 
point  of  view. 

Judgment  affirmed. 


PASTENE  V.  PARDINI. 

135  Cal.  431.     [1902.] 

Henshaw,  J.  This  was  an  action  upon  a  promissory  note. 
The  complaint  contained  the  usual  averments.  It  charged  that 
Luigi  Pardini,  "for  a  valuable  consideration,  made,  executed, 
and  delivered  to  plaintiff  a  promissory  note,"  etc.  It  also 
averred  nonpayment  of  the  principal  sum  and  interest,  and  that 
the  whole  was  due  and  unpaid.  The  answer  was  a  denial  that 
"Luigi  Pardini,  for  a  valuable  consideration  or  otherwise,  made, 

*But  see  Thayer,  Preliminary  Treatise  on  Evidence,  p.  232. 


670  THE  ANSWER.  [ChAP.  IV. 

executed,  and  delivered  to  plaintiff,  a  promissory  note  for  the 
sum  of  twenty-five  hundred  dollars  or  any  other  sum,"  The 
next  denial  of  the  answer  was:  "Denies  that  Luigi  Pardini 
has  not  paid  the  alleged  note  set  forth  in  plaintiff's  complaint; 
denies  that  the  said  Luigi  Pardini  has  not  paid  the  interest  on 
said  alleged  note  set  forth  in  plaintiff's  complaint;  denies  that 
said  alleged  note  or  the  interest  is  still  unpaid."  Following 
these  denials  was  a  cross  complaint  to  the  effect  that  the  sum  of 
$800  was  loaned  to  plaintiff  by  Luigi  Pardini. 

At  the  opening  of  the  trial,  plaintiff's  attorneys  stated  what 
he  believed  to  be  the  issues  involved,  and  that  the  sole  issue  was 
the  execution  of  the  note,  stating,  further,  his  conviction  that 
the  cross  complaint  was  not  proper  in  the  action.  The  court,  in 
passing  upon  the  suggestion  of  the  attorney,  held  that  the  cross 
complaint  could  not  be  set  up  in  the  action,  and  settled  the 
pleadings  by  declaring:  "The  only  issue  under  the  pleadings  is 
whether  the  deceased,  Pardini,  executed  the  note."  Appellants 
contend  that  by  the  ruling  of  the  court  above  quoted  he  wa^ 
deprived  of  his  defences  to  the  note  of  nondelivery,  want  of 
consideration,  and  payment.     *     *     * 

As  to  the  second  and  third  contentions,  that  the  defendant 
was  deprived  of  his  defences  of  lack  of  consideration  and  pay- 
ment, it  is  sufficient  to  say  that  such  defences  are  affirmative  de- 
fences to  be  pleaded,  and  this,  defendant  did  not  do.  He  con- 
tented himself  in  his  answer  with  a  naked  denial  of  the  aver- 
ments of  the  complaint,  and  this,  as  has  been  repeatedly  held 
in  this  and  in  other  code  states,  is  not  sufficient  to  raise  either 
of  these  issues.  "A  promissory  note  imports  a  consideration, 
and  therefore  it  is  not  necessary  that  a  consideration  should  be 
specially  alleged.  If  there  was  no  consideration,  the  defendant 
should  have  filed  an  answer  setting  up  a  want  of  it  as  a  defence 
to  the  action. "  Winters  v.  Rush,  34  Cal.  136.  The  introduction 
of  the  unpaid  note  by  the  plaintiff  was  sufficient  evidence,  if 
evidence  was  necessary,  in  support  of  his  negative  allegation  of 
nonpayment  (Brennan  v.  Brennan,  122  Cal.  441,  [55  Pac.  124, 
68  Am.  St.  Rep.  46] ) :  but  payment  is  an  affirmative  defence, 
which  must  be  pleaded.  (Melone  v.  Ruffino,  129  Cal.  514,  [62 
Pac.  93,  79  Am.  St.  Rep.  127]).  Therefore,  defendant  has  no 
just  cause  for  complaint  that  he  was  excluded  by  the  ruling  of 
the  court  from  offering  evidence  upon  defences  which  he  had  not 
raised. 


Sec.  2.]  pastene  v.  pardini.  671 

There  was  sufficient  evidence  to  support  the  findings  of  the 
court  upon  all  the  issues,  and,  as  defendant  was  not  deprived 
of  any  defence  to  which  he  was  entitled,  the  judgment  is  affirmed. 


JOHNSTON  V.  NORTHWESTERN  INS.  CO. 

94  Wis.  117.     [1896.] 

Newman,  3".  (after  stating  the  facts)  :  At  the  commencement 
of  the  trial  there  was  a  demurrer  ore  tenus  to  the  complaint,  on 
the  ground  that  it  did  not  state  a  cause  of  action.  The  policy- 
contained  an  agreement  that  the  insured  would  "use  due  diligence, 
precaution,  and  care  in  the  use,  and  for  the  safety,  health,  and 
preservation,  of  said  live  stock,  and  in  case  of  sickness  or  acci- 
dent would  promptly  summon  to  his  aid  the  best  veterinary  sur- 
geon to  be  had  in  the  vicinity. ' '  A  failure  to  do  so  was  to  avoid 
the  policy.  The  demurrer  was  based  principally  upon  the  failure 
of  the  complaint  to  allege  affirmatively  the  performance  of  this 
agreement.  This  was  not  a  defect  in  the  complaint.  The  per- 
formance of  this  agreement  was  a  condition  subsequent.  It  did 
not  go  to  the  original  validity  of  the  policy,  but  was  a  stipulation 
to  be  performed  afterwards.  Its  breach  is  a  defense  merely. 
It  is  no  necessary  part  of  the  plaintiff's  case,  in  the  first  instance, 
either  by  pleading  or  proof,  to  show  that  he  has  performed  it. 
If  the  defendant  relied  upon  failure  to  perform  this  stipulation 
of  the  policy,  it  should  be  set  up  as  a  defense.  It  could  make  it 
available  in  no  other  way.  Redman  v.  Insurance  Co.,  49  Wis. 
431,  (4  N.  W.  591) ;  Schobacher  v.  Insurance  Co.,  59  Wis.  86, 
(17  N.  W.  969) ;  Benedix  v.  Insurance  Co.,  78  Wis.  77,  (47  N. 
W.  176). 


OSCANYAN  V.  ARMS  COMPANY. 

103  U.  8.  261.     [1880.] 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  the  sum  of  $136,000,  alleged  to  be 
due  to  the  plaintiff  upon  a  contract  with  the  defendant,  as  com- 
missions on  the  sales  of  fire-arms  to  the  Turkish  government, 
effected  through  his  influence.    The  defendant  pleads  the  general 


672  THE  ANSWEIC.  |ClIAl'.  IV. 

issue.  At  the  time  the  transactions  ueenrred,  dut  of  which  this 
action  has  arisen,  the  plaintiff  was  consul-^neral  of  the  Ottoman 
government  at  the  port  of  New  York.  The  defendant  is  a  cor- 
poration, created  under  the  laws  of  Connecticut.  The  action  was 
originally  commenced  in  the  Supreme  Court  of  New  York,  and 
on  motion  of  the  defendant,  was  removed  to  the  Circuit  Court 
of  the  United  States.  When  it  was  called  for  trial,  and  the  jury 
was  impanelled,  one  of  the  plaintiff's  counsel,  as  preliminary  to 
the  introduction  of  testimony,  stated  to  the  court  and  jury  the 
issues  in  the  case,  and  the  facts  which  they  proposed  to  prove. 
PVom  such  statement  it  appeared  that  the  sales  for  which  com- 
missions were  claimed  by  the  plaintiff  were  made  whilst  he  was 
tin  officer  of  the  Turkish  government,  and  through  the  influence 
which  he  exerted  upon  its  agent  sent  to  this  country  to  examine 
and  report  in  regard  to  the  purchase  of  arms.  The  particulars 
of  the  services  rendered  will  be  more  fully  mentioned  hereafter. 
It  is  sufficient  now  to  say  that  the  defendant,  considering  that 
the  facts  which  the  plaintiff  proposed  to  prove  showed  that  the 
contract  was  void  as  being  corrupt  in  itself  and  prohibited  by 
morality  and  public  policy,  upon  which  no  recovery  could  be 
had,  moved  the  court  to  direct  the  jury  to  render  a  verdict  in 
its  favor.  The  court  thereupon  inquired  of  the  plaintift"s  coun- 
sel if  they  claimed  or  admitted  that  the  statements  which  had 
been  made  were  true,  to  which  they  replied  in  the  affirmative. 
Argument  was  then  had  upon  the  motion,  after  which  the  court 
directed  the  jury  to  find  a  verdict  for  the  defendant,  which  was 
accordingly  done.  Judgment  being  entered  upon  it,  the  case  was 
brought  to  this  court  for  review.  The  reversal  of  the  judgment 
is  sought  for  alleged  errors  of  the  court  below  in  three  par- 
ticulars : 

1st,  In  directing  a  verdict  for  the  defendant  upon  the  opening 
statement  of  the  plaintiff's  counsel; 

2d,  In  holding  that  the  question  of  the  illegality  of  the  con- 
tract could  be  considered  in  the  case,  the  same  not  having  been 
specially  pleaded ;  and, 

3d,  In  adjudging  that  the  contract  set  forth  in  the  opening 
statement  was  illegal  and  void. 

Each  of  these  grounds  will  be  carefully  examined. 

1.  Several  reasons  are  presented  against  the  power  of  the 
court  to  direct  a  verdict  upon  the  statement  of  the  facts  which 
the  plaintiff  proposed  to  prove,  that  might  be  more  properly 


Sec.  2.]  oscanyan  v.  arms  company.  673 

urged  agrainst  its  exorcise  in  particular  cases.  The  power  of  the 
court  to  act  in  the  disposition  of  a  trial  upon  facts  conceded  by 
counsel  is  as  plain  as  its  power  to  act  upon  the  evidence  pro- 
duced. The  question  in  either  ca.se  must  be  whether  the  facts 
upon  which  it  is  called  to  instruct  the  jury  be  clearly  established. 
If  a  doubt  exists  as  to  the  statement  of  counsel,  the  court  will 
withhold  its  directions,  as  where  the  evidence  is  conflicting,  and 
leave  the  matter  to  the  determination  of  the  jury.     *     *     * 

2.  The  position  of  the  plaintiff  that  the  illegality  of  the  con- 
tract in  suit  cannot  be  noticed,  because  not  affirmatively  pleaded, 
does  not  strike  us  as  having  much  weight.  We  should  hardly 
deem  it  worthy  of  serious  consideration  had  it  not  been  earnestly 
pressed  upon  our  attention  by  learned  counsel.  The  theory  upon 
which  the  action  proceeds  is  that  the  plaintiff  has  a  contract, 
valid  in  law,  for  certain  services.  Whatever  shows  the  invalidity 
of  the  contract,  shows  that  in  fact  no  such  contract  as  alleged 
ever  exi.stod.  The  general  denial  under  the  Code  of  Procedure 
of  New  York,  or  the  general  Issue  at  common  law,  is,  therefore 
sustained  by  proof  of  the  invalidity  of  the  transaction  which  is 
designated  in  the  complaint  or  declaration  as  a  contract. 

Whilst,  however,  at  the  common  law,  under  the  general  issue 
in  assumpsit,  it  was  always  admissible  to  give  in  evidence  any 
matter  which  showed  that  the  plaintiff  never  had  a  valid  cause 
of  action,  in  practice  many  other  matters  were  allowed  under 
that  plea,  such  as  went  to  the  discharge  of  the  original  cause  of 
action,  and  showed  that  none  subsisted  at  the  commencement 
of  the  suit, — such  as  payment,  release,  accord  and  satisfaction, 
and  a  former  recovery,  and  excuses  for  non-performance  of  the 
contract;  and  also  that  it  had  become  impossible  or  illegal  to 
perform  it.  1  Chitty,  Pleading,  493;  Craig  v.  The  State  of 
Missouri,  4  Pet.  410-426;  Edson  v.  Weston,  7  Cow.  (X.  Y.)  278; 
Young  V.  Rummoll,  2  Hill  (X.  Y.),  478.  It  followed  that  there 
were  many  surprises  at  the  trial  by  defences  which  the  plaintiff 
was  not  prepared  to  meet.  The  Engli.sh  court.s,  under  the  author- 
ity' of  an  act  of  Parliament  passed  in  the  reign  of  William  IV., 
adopted  rules  which,  to  some  extent,  corrected  the  evils  arising 
from  this  practice  of  allowing  defences  under  the  general  issue 
which  did  not  go  directly  to  the  validity  of  the  original  cause  of 
action.  And  the  Code  of  Procedure  of  Xew  York  did  away  en- 
tirely with  the  practice  in  that  State,  and  required  parties  rely- 
ing upon  anything  which,  admitting  the  original  existence  of  the 
43         ' 


574  THE  ANSWER.  [ClIAI'.  IV. 

cause  of  action,  went  to  show  its  discharp',  such  as  n  r.^lms.'  or 
payment,  or  other  matter,— to  plead  it  specially,  in  ord-r  that 
the  plaintiff  might  be  apprised  of  the  tjrounds  of  defence  to  the 
action.  We  do  not  undei-stand  that  the  code  makes  any  other 
chan«,'e  in  the  mattei-s  admissible  under  the  general  denial. 

But  if  we  are  mistaken  in  this  view  of  the  system  of  procedure 
adopted  in  New  York,  and  of  the  defences  admissible  according 
to  it  under  a  general  denial  in  an  action  upon  a  contract,  our 
conclusion  would  not  be  ehanged  in  the  present  case.  Here  the 
action  is  upon  a  contract  which,  according  to  the  view  of  the 
judge  who  tried  the  case,  was  a  corrupt  one,  forbidden  by  moral- 
ity and  public  policy.  We  shall  hereafter  e.xamine  into  the 
correctness  of  this  view.  Assuming  for  the  present  that  it  was  a 
sound  one,  the  objection  to  a  recovery  could  not  be  obviated  or 
-waived  by  any  system  of  pleading,  or  even  by  the  express  stipu- 
lation of  the  parties.  It  was  one  which  the  court  itself  was 
bound  to  raise  in  the  interest  of  the  due  administration  of  justice. 
The  court  will  not  listen  to  claims  founded  upon  services  ren- 
dered in  violation  of  common  decency,  public  morality,  or  the 
law.  History  furnishes  instances  of  robbery,  arson,  and  other 
crimes  committed  for  hire.  If,  after  receiving  a  pardon,  or 
suffering  the  punishment  imposed  upon  him,  the  culprit  should 
sue  the  instigator  of  the  crime  for  the  promi.sed  reward, — if  we 
may  suppose  that  audacity  could  go  so  far, — the  court  would  not 
hesitate  a  moment  in  dismissing  his  case  and  sending  him  from 
its  presence,  whatever  might  be  the  character  of  the  defence.  It 
would  not  be  restrained  by  defects  of  pleading,  nor,  indeed,  could 
it  be  by  the  defendant's  waiver,  if  we  may  suppose  that  in  such 
a  matter  it  would  be  offered.  What  is  so  obvious  in  a  case  of 
such  aggravated  criminality  as  the  one  supposed,  is  equally  true 
in  all  cases  where  the  services  for  which  compensation  is  claimed 
are  forbidden  by  law,  or  condemned  by  public  decency  or  mor- 
ality. 

This  doctrine  was  applied  in  Coppell  v.  Hall,  reported  in  7th 
Wallace.  In  that  case  Coppell  was  the  acting  British  consul  in 
New  Orleans,  and  during  the  late  civil  war  entered  into  a  con- 
tract with  one  Hall,  by  which  the  latter  agreed  to  furnish  him 
with  sundry  bales  of  cotton,  which  he  was  to  cause  to  be  pro- 
tected from  seizure  by  our  forces  and  transported  to  New  Or- 
leans, and  there  disposed  of  to  the  best  advantage,  he  to  receive 
one-third  of  the  profits  for  his  compensation.    For  breach  of  this 


Sec.  2.J  OSCANYAN    V.    ARMS    COMPANY.  675 

contract  he  sued  Hall,  who  set  up  that  the  contract  was  against 
public  policy  and  void,  and  also  a  reconventional  demand  or 
counter-claim  for  damaj^'cs  for  a  breach  of  the  contract  by  Cop- 
pell.  On  the  trial,  the  court  below,  among  other  things,  in- 
structed the  jury  that  if  the  contract  was  illegal,  the  illegality 
had  been  waived  by  the  reconventional  demand  of  the  defendant ; 
but  this  court  said,  speaking  through  ^Ir.  Justice  Swayne,  that 
the  in.struction  "was  founded  upon  a  misconception  of  the  law." 
"In  such  cases,''  he  added,  "there  can  be  no  waiver.  The  de- 
fence is  allowed,  not  for  the  sake  of  the  defendant,  but  of  the 
law  itself.  The  principle  is  indispensable  to  the  purity  of  its 
iulministration.  It  will  not  enforce  what  it  has  forbidden  and 
denounced.  The  maxim,  ex  dolo  nun  oritur  actio,  is  limited  by 
no  such  (juaiification."  The  proposition  to  the  contrary  strikes 
us  as  hardly  worthy  of  serious  refutation.  Whenever  the  il- 
legality appears,  whether  the  evidence  comes  from  one  side  or 
the  other,  the  disehisure  is  fatal  to  the  case.  No  consent  of  the 
defendant  can  neutralize  its  etlect.  A  stipulation  in  the  most 
solenni  form  to  waive  the  objection  would  be  tainted  with  the 
vice  of  the  original  contract,  and  void  for  the  same  reasons. 
Wherever  the  contamination  reaches  it  destroys.  The  principle 
to  be  extracted  from  all  the  cases  is,  that  the  law  will  not  lend 
its  support  to  a  claim  founded  upon  its  violation."  See  also  Hol- 
inan  v.  Johnson,  1  Cowp.  341. 

Approving  of  the  doctrine  so  well  expresed  in  this  citation, 
our  conclusion  is,  that  the  second  position  of  the  plaintiff  is  not 
well  taken.     •     •     • 

Judgment  affirmed* 


BUTTERMERE  v.  HAYES. 

5  Mces.  d:  W.  456.     [1839.] 

Parke,  B.  The  question  which  the  coiwt  reserved  for  con- 
sideration was,  whether,  in  an  action  on  an  executory  contract 
concerning  an  interest  in  land,  the  plaintiff  was  required,  on  a 
plea  of  non  assumpsit,  to  prove  a  memorandum  in  writing  as 

♦Sprague  v.  Rooney,  104  Mo.  349,  accord;  compare  St.  L.,  A.  &  M. 
Ass'n  V.  Delano.  lOS  Mo.  217. 


576  THE  ANSWEK.  [CuAT.  IV. 

required  by  the  4th  section  of  the  Statute  of  Frauds.  Upon  this 
point,  depending  upon  the  construction  of  the  New  Rules,  a 
considerable  ditference  of  opinion  has  prevailed  in  the  profession 
and  the  Court  have  therefore  been  desirous  to  f;ive  the  question 
full  consideration. 

There  is  no  doubt  that  before  the  new  rules  of  pleading,  such 
proof  would  have  been  necessary.    Bnt  the  1st  and  3rd  of  these 
rules,  in  actions  of  assumpsit,  have  limited  the  operation  of  the 
plea  of  non  assumpsit.     Allegations  in  the  declaration  are  now 
admitted  by  that  plea,  which  formerly  it  required  the  plaintiff 
to  prove;  and  defences  are  now  excluded  by  the  new  rule,  which 
formerly  might  have  been  proved  under  it.     Before  the  New 
Rules,  under  the  plea  of  non  assumpsit,  the  plaintiff  was  required 
to  prove  all  the  material  averments  in  the  declaration,  and  not 
merely  the  making  of  the  contract  declared  on;  and  the  de- 
fendant was  at  liberty  not  only  to  disprove  all  the  allegations  of 
the  declaration,  but  to  show  by  evidence  consistent  with  them, 
that  the  contract,  though  actually  broken,  was  void  in  law,  and 
even  to  prove  defences,  such  as  release,  or  accord  and  satisfaction, 
which  showed  that  though  a  cause  of  action  had  once  subsisted, 
it  was  put  an  end  to  befoi-e  the  commencement  of  the  suit.   The 
object  of  the  New  Rules  was  clearly  to  remove  this  incunvenience, 
and  with  that  view  the  first  and  third  of  these  in  assumpsit  re- 
strict the  general  issue,  by  limiting  the  operation  by  which  it 
formerly  put  in  issue  all  the  averments  in  the  declaration  in 
actions  on  special  contracts,  and  by  confining  it  to  a  denial  of 
one  of  them  only,  namely,  of  the  contract  declared  on,  and  by 
excluding  all  defences  which  might  formerly  have  been  made  by 
disproving  all  the  other  allegations  of  the  declaration,  or  by 
proof  of  matter  which  showed  that  the  contract  was  void,  or 
that  the  cause  of  action  had  ceased  before  the  commencement  of 
the  suit.     In  the  present  case  the  question  in  effect  is,  whether 
the  writing  required  by  the  4th  section  of  the  Statute  of  Frauds, 
and  which  formerly  was  a  necessary  part  of  the  plaintiff's  proof 
on  the  issue  of  non  assumpsit,  is  so  still;  and  the  Court  are  of 
the  opinion  that  it  is.     Under  the  former  system  of  pleading, 
the  plaintiff  was  required  to  prove  a  writing  within  the  Statute 
of  Frauds.    This  must  have  been  in  order  to  support  some  allega- 
tion of  his  declaration,  and  there  is  no  allegation,  except  that 
of  the  making  of  the  contract,  which  it  supports.    This  allegation 
is  still  put  in  issue  by  the  plea  of  non  assumpsit;  and  there  is 


Sec.  2.]  buttermere  v.  hayes.  677 

nothing  in  the  New  Rules  which  alters  the  evidence  by  which  the 
plaintiff  was  required  to  support  it. 

It  was  contended  on  behalf  of  the  plaintiff,  that  the  want  of  a 
writing  to  satisfy  the  Statute  of  Frauds  was  a  matter  which  was 
required  to  be  specially  pleaded  under  the  3rd  rule,  as  showing 
the  contract  to  be  void  or  voidable  in  point  of  law ;  but  we  think 
that  the  meaning  of  this  part  of  the  rule  is  to  require  matter  to 
be  specially  pleaded  which  would  have  been  the  subject  of  proof 
on  the  part  of  the  defendant,  such  as  usury,  fraud,  &c. ;  and  not 
to  exempt  the  plaintiff  from  proving  anything  which  he  would 
formerly  have  been  required  to  prove.  We  therefore  think  that 
the  writing  required  by  the  4th  section  must  be  proved  on  the 
general  issue  by  the  plaintiff'.* 

This  Court  has  already  intimated  its  opinion,  that  the  plaintiffs 
must  prove  a  note  in  writing,  required  by  the  17th  section,  on  the 
plea  of  the  general  issue ;  Johnson  v.  Dodgson,t  Elliott  v.  Thom- 
as ; J  and  we  have  no  difficulty  in  saying  that  in  the  other  cases 
in  which  the  Statute  of  Frauds  requires  a  writing,  as,  for  in- 
stance, in  cases  of  demises  for  three  years,  a  writing  must  be 
proved,  not  merely  on  a  special  traverse  of  the  demise,  but 
where  the  denial  of  the  demise  is  included  in  the  general  issue. 

The  rule,  therefore,  which  has  been  obtained  in  this  case,  to 
enter  a  verdict  for  the  defendant  on  the  first  count,  must  be  made 

absolute.  _   ,      ^     ,   ^ 

Rule  absolute. 


t2  M.  &  W.  657.     t3  M.  &  W.  170. 

♦Maule,  J.,  in  Leroux  v.  Brown,  12  C.  B.  801  (1852).  The  4th  sec- 
tion of  the  Statute  of  Frauds  enacts  that  "no  action  shall  be  brought 
upon  any  agreement  which  is  not  to  be  performed  within  the  space 
of  one  year  from  the  making  thereof,  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereto  by  him  lawfully  authorized." 
Now,  this  is  an  action  brought  upon  a  contract  which  was  not  to  be 
performed  within  the  space  of  one  year  from  the  making  thereof,  and 
there  is  no  memorandum  or  note  thereof  in  writing  signed  by  the 
defendant  or  any  lawfully  authorized  agent.  The  case,  therefore, 
plainly  falls  within  the  distinct  words  of  the  statute.  It  is  said 
that  the  4th  section  is  not  applicable  to  this  case,  because  the  contract 
was  made  in  France.  This  particular  section  does  not  in  terms  say 
that  no  such  contract  as  before  stated  shall  be  of  any  force;  it  says. 
no  action  shall  be  brought  upon  it.  In  their  literal  sense,  these  words 
mean  that  no  action  shall  be  brought  upon  such  an  agreement  in  any 


678 


THE  ANSWER. 


[Chap.  IV. 


MATTHEWS  v.  MATTHEWS. 

ind  N.  Y.  288.     [1897.] 

Andrews,  C.  J.     Subsefiuently  to  the  decision  of  the  former 

appeal  in  this  case  (133  N.  Y.  681,  31  N.  E.  519),  the  case  of 

Crane  v.  Powell,  139  N.  Y.  379,  34  N.  E.  911,  came  before  the 

,^court,  in  which  the  controverted  question  was  whether,  in  an 

(  action  on  an  oral  contract  within  the  statute  of  frauds,  where 

\  the  complaint  did  not  disclose  the  nature  of  the  contract,  whether 

I  oral  or  written,  it  was  necessary  for  the  defendant  to  plead  the 

(statute  in  order  to  avail  himself  of  the  objection.    The  question 

'^'^''''■*^^*^^    ^settling  the  law  of  this  state  upon  a  question  upon  which  the 


court  in  which  the  British  legislature  has  power  to  direct  what  shall  and 
what  shall  not  be  done;    in  terms,  therefore,  it  applies  to  something 
which  is  to  take  place  where  the  law  of  England   prevails.     But  we 
have  been  pressed  with  cases  which  it  is  said  have  decided  that  the 
words  "no  action  shall  be  brought"  in  the  4th  section  are  equivalent 
to  the  words,  "no  contract  shall  be  allowed  to  be  good,"  which  are 
found  in  another  part  of  the  statute.     Suppose  it  had  been  so  held,  as 
a   general   and   universal   proposition,   still   I   apprehend   it  would  not 
be  a  legitimate  mode  of  construing  the  4th  section,  to  substitute  the 
equivalent  words  for  those  actually  used.    What  we  have  to  construe, 
is,  not  the  equivalent  words,  but  the  words  we  find  there.     If  the 
substituted  words  import  the  same  thing,  the  substitution  is  unneces- 
sary and  idle;   and,  if  those  words  are  susceptible  of  a  different  con- 
struction from  those  actually  used,  that  is  a  reason  for  dealing  with 
the  latter  only.     It  may  be,  that,  for  some  purposes,  the  words  used 
in  the  4th  and  17th  sections  may  be  equivalent;   but  they  clearly  are 
not  so  in  the  case  now  before  us;  for,  there  is  nothing  to  prevent  this 
contract  from  being  enforced  in  a  French  court  of  law.     Dealing  with 
the  words  of  the  4th  section  as  we  are  bound  to  deal  with  all  words 
that  are  plain  and  unambiguous,  all  we  say,  is,  that  they  prohibit  the 
courts  of  this  country  from  enforcing  a  contract  made  under  circum- 
stances like  the  present, — just  as  we  hold  a  contract  incapable  of  being 
enforced,  where  it  appears  upon  the  record  to  have  been  made  more 
than  six  years.     It  is  parcel  of  the  procedure,  and  not  of  the  formality 
of  the  contract.     None  of  the  authorities  which  have  been  referred  to 
seem  to  me  to  be  at  all  at  variance  with  the  conclusion  at  which  we 
have  arrived. 


Sec.  2.J  Matthews  v.  Matthews.  679 

courts  of  different  jurisdictions  have  differed  in  opinion.  This 
court  regarded  the  rule  adopted  in  Crane  v.  Powell  as  sound  in 
principle,  and  as  supported  by  the  rule  applied  in  analagous 
cases. 

It  is  plain,  upon  the  view  that  the  statute  of  frauds  does  not 
make  an  oral  contract  within  its  terms  illegal,  but  only  voidable 
at  the  election  of  the  party  sought  to  be  charged,  that  such  election 
must  be  manifested  in  some  affirmative  way.  The  mere  denial 
in  the  answer  of  the  contract  alleged  in  the  complaint,  when  the 
character  of  the  contract  is  not  disclosed,  is  quite  consistent  with 
an  intention  to  put  in  issue  simply  the  fact  whether  any  agree- 
ment was  entered  into,  either  oral  or  written.  One  of  the  rules 
established  by  the  English  judicature  act,  as  amended  in  1873 
(38  &  39  Vict.  c.  77,  order  19,  rule  23),  ordained  that,  "where. 
a  contract  Ls  alleged  in  any  pleading,  a  bare  denial  of  the  con- 
tract  by  the  opposite  party  shall  be  construed  only  as  a  denial 
of  the  making  of  the  contract,  and  not  of  its  legality  or  its  suffi- 
ciency in  law,  whether  with  reference  tu  the  statute  of  frauds 
or  otherwise'';  and  in  Towle  v.  Topham,  37  Law  T.  (N.  S.)  309, 
Jessel,  M.  R.,  applied  the  rule  to  the  pleadings  in  an  equity  case. 
The  statutory  rule  enacted  by  the  English  judicature  act  was 
regarded  by  this  court  in  Crane  v.  Powell  as  declaring  the  true 
rule,  independently  of  the  statute.  The  mere  denial  in  the 
answer  in  the  present  case  of  the  contract  alleged  in  the  com- 
plaint did  not,  therefore,  raise  any  question  under  the  statute 
of  frauds,  and  it  could  not  be  raised  by  objection  on  the  trial 
to  the  proof  of  the  oral  contract,  for  the  very  conclusive  reason 
that  the  statute  must  be  pleaded  before  the  validity  of  the  con- 
tract on  that  ground  can  be  assailed.  Regarding  the  agreement 
alleged  and  found  in  this  case  as  one  for  the  sale  and  conveyance 
to  the  plaintiff  of  the  house  and  lot,  and  applying  the  rule  es- 
tablished in  Crane  v.  Powell,  it  is  plain  that  it  must  be  treated 
as  a  valid  contract,  and  its  breach  by  the  original  defendant 
(who  has  died  since  the  last  trial)  as  giving  a  right  of  action 
for  damages,  as  if  the  contract  had  been  written  and  not  oral. 


%&^      ^^L^^yC^v^^ 


680 


THE  ANSWER.  fCnAP.  IV. 


SPRINGER  V.  KLEINSORGE. 
83  Mo.  152.  [1884.] 
Philips,  C.  This  is  an  action  to  recover  from  the  defendant 
the  amount  alleged  to  have  been  bid  by  him  for  certain  r.>al 
estate  sold  in  the  name  of  Nicholas  Springer  and  others  at  public 
auction.  The  answer  tendered  the  general  issue,  and  further 
pleaded  that  at  said  sale  false  and  fraudulent  bidders,  known 
as  bybidders,  through  the  connivance  of  plaintiff's  testator,  were 
present,  and  that  false  representations  were  then  and  there  made 
by  vendors,  by  reason  of  which  defendant  was  misled  into  making 
a  bid  at  said  pretended  sale. 

On  a  trial  before  the  court,  without  a  jury,  the  court  found 
the  Issues  for  the  defendant,  and  dismissed  the  petition.  From 
this  judgment  plaintiffs  appealed  to  the  St.  Louis  court  of 
appeals,  where  the  judgment  of  the  circuit  court  was  reversed. 
From  this  last  judgment  the  defendant  prosecutes  this  appeal. 

1.  The  statute  of  frauds  is  invoked  in  argument  by  the  de- 
fendant. The  court  of  appeals  held  that  "the  statute  of  frauds 
is  not  in  the  case  at  all  because  it  is  not  pleaded."  We  cannot 
assent  to  this  proposition.  The  petition  avers  a  contract  of  sale 
respecting  real  estate.  It  is  not  averred  whether  the  contract  is 
in  writing  or  not.  The  presumption,  however,  in  such  caes  is, 
that  the  contract  is  such  as  the  law  recognizes.  If  it  appeared 
on  the  face  of  the  petition  that  it  was  not  in  writing,  duly  ex- 
ecuted, the  petition  would  be  demurrable.  This  fact  not  so  ap- 
^^  pearing,  the  defendant,  to  avail  himself  of  the  statute  of  frauds. 

h_SL  siSCS^—  Tnust  raise  the  issue  bv  answer.    But  it  is  not  necessary  that  the 
»--  «A  answer  should,  in  so  many  words,  plead  the  statute  eo  nomine. 

'j.^,,.:^^  "Where  the  defendant  in  his  answer  denies  the  contract,  it  is 

Aji/^«oy,,o^-  not  necessary  for  him  to  insist  upon  the  statute  as  a  bar.  Wild- 
.  ys.^&.^3^,  b^^niobidoux,  11  Mo.  660;  Hook  v.  Turner,  22  Mo.  333-335. 
It  is  gg  fnlly  r;iised  bv  a  general  denial  "as  any  other  answer 
could  raise  it."  Wisnell  v.  Tefft,  5  Kan.  263 ;  Bliss  on  PL,  353 ; 
Allen  V.  Richard,  ante,  p.  55. 

On  such  statute  of  the  pleadings  the  plaintiff,  as  said  by  Ry- 
land,  J.,  in  Hook  v.  Turner,  supra,  "must  produce  legal  evi- 
dence of  the  existence  of  the  agreement,  which  cannot  be  estab- 
lished by  parol  proof."*    This  logically  results  from  the  general 

*But  see  Thayer,  Cases  on  Evidence,  820,  note. 


Sec.  2.]  springer  v.  kleinsorge.  681 

denial  authorized  by  the  practice  act.  The  general  denial  puts 
in  issue  every  fact  included  within  the  allegations  of  the  peti- 
tion, which  the  plaintiff  must  prove  in  order  to  a  recovery. 
Northrup  v.  Miss  V.  Ins.  Co.,  47  Mo.  435-444.  In  the  action  of 
replevin  and  of  ejectment,  under  a  general  denial,  the  defendant 
may  show  that  the  claim  of  plaintiff  is  fraudulent  and  bad,  and 
thus  avoid  the  plaintiff's  title.  Greenway  v.  James,  34  Mo.  328; 
Bobb  V.  Woodward,  42  Mo.  488 ;  25  Wis.  35-36 ;  3  Bibb  216.  The 
answer  in  this  case  contains,  first,  a  general  denial  of  the  allega- 
tion of  the  petition.  It  is  true,  it  pleads  other  matters  of  special 
defence,  but  the  new  matter  is  in  nowise  inconsistent,  in  con- 
templation of  the  practice  act,  with  a  general  denial.  They  can 
well  exist  together  in  point  of  fact  and  law.  Nelson  v.  Brodhack, 
44  Mo.  596. 

This  construction  of  the  pleading  in  this  case  is  in  nowise  in 
conflict  with  the  cases  of  Gardner  v.  Armstrong,  31  Mo.  535; 
Rabsuhl  v.  Lack,  35  Mo.  316 ;  and  Graff  v.  Foster,  67  Mo.  512, 
cited  by  the  court  of  appeals  in  support  of  its  ruling.  In  the 
first  case  cited  the  court  simply  holds,  that  the  petition  was  not 
demurrable  for  failing  to  recite  that  the  contract  was  in  writing. 
That  was  matter  of  defence  to  be  raised  by  the  answer.  It  does 
not  say  that  the  question  would  not  be  well  raised,  under  our 
present  practice  act,  by  the  general  issue.  So  in  the  case  in  35 
Mo.,  the  answer  admitted  the  indebtedness  without  pleading  the 
statute.  And  in  Graff  v.  Foster,  an  examination  will  show  that 
the  answer  did  not  deny  the  contract,  but  merely  put  in  issue  the 
indebtedness.  To  deny  the  indebtedness  is  no  denial  of  the 
existence  of  the  contract  out  of  which  the  petition  avers  the 
indebtedness  arose.     Engler  v.  Bate,  19  Mo.  543. 

Judgment  (of  the  Court  of  Appeals)  reversed. 


BARKER  v.  WHEELER. 

6.2  Net.  150.     HQOl.] 

Sullivan,  J.  Bert  Glendore  Wheeler  sued  the  plaintiffs  in 
error  as  sureties  upon  an  official  bond,  and  obtained  judgment 
against  them.  The  petition  alleges  that  one  James  W.  Eller  was 
county  judge  of  Douglas  county  during  the  term  ending  Janu- 


682 


THE  ANSWER.  [ChaP.  IV. 


ary  3,  1894;  that  the  defendants  George  E.  Barker  and  William 
S.  Rector  were  the  sureties  upon  his  official  bond ;  that  EUer  in 
his   official   capacity  received   certain   money  belon^ng  to  the 
plaintiff,  and  converted  the  same  to  his  own  use.     The  answer 
admits  that  Eller  was  county  judge,  and  that  defendants  were 
his  sureties,  but  denies  in  general  terms  the  other  averments  of 
the  petition.    The  only  assignment  of  error  with  which  we  have 
to  deal  calls  in  question  a  ruling  of  the  trial  court  excluding 
evidence  tending  to  show  that  Eller,  while  he  was  yet  judge 
of  the  county  court,  paid  the  plaintiff's  money  to  her  duly  con- 
stituted guardian.    The  correctness  of  this  ruling  depends  upon 
whether,  in  actions  of  this  kind,  evidence  of  payment  is  admis- 
sible under  a  general  denial.    It  is  settled  doctrine  in  this  state, 
that,  in  actions  to  recover  money  claimed  to  be  due  upon  ordinary 
contracts,  the  general  denial  is  the  Code  equivalent  of  the  com- 
mon-law plea  of  nonassumpsit,  and  hence  does  not  put  the  alle?:^a- 
tion  of  nonpayment  in  issue^    Magenau  v.  Bell,  14  Neb.  7,  (14 
N.  W.  664) ;  Clark  v.  Mullen,  16  Neb.  481,   (20  N.  W.  642) ; 
Lamb  v.  Thompson,  31  Neb.  448,  (48  N.  W.  58) ;  Lewis  v.  Lewis, 
31  Neb.  528,  (48  N.  W.  267) ;  Live-stock  Co.  v.  May,  51  Neb. 
474,  (71  N.  W.  67) ;  Iludelson  v.  Bank,  51  Neb.  557,  (71  N.  W. 
304).    These  cases  recognize  no  distinction  between  payment  ac- 
cording to  the  terms  of  the  contract  and  payment  after  breach 
of  the  contract,  and  one  of  them,  at  least  (Clark  v.  Mullen,  16 
Neb.  481,  20  N.  W.  642),  is  a  direct  adjudication  to  the  effect  that 
payment  at  the  time  the  goods  were  sold  and  delivered,  and 
before  a  cause  of  action  arose,  could  not  be  shown  unless  spe- 
cially pleaded.    But  neither  this  court  nor  any  other^  so  far  as 
we  know,  has  ever  held,  in  an  action  on  an  official  bond  or  other 
bond  of  indemnity,  that  the  plaintiff  was^  bv  a  general  denial, 
relieved  of  the  necessity  of  proving  the  loss  or  injury  out  o£' 
which  arose  the  ri^ht  of  action.    The  defendants  did  not  by  their 
bond  become  indebted  to  the  plaintiff.    They  assumed  no  specific 
obligation  to  her  which  they  were  bound  at  all  events  to  dis- 
charge, by  payment  or  otherwise.     Their  promise,  given  to  the 
county  of  Douglas,  was  to  make  good  any  loss  that  the  public 
or  individuals  might  sustain  by  reason  of  the  official  misconduct 
of  Eller.     This  being  so,  it  would  be  illogical — it  would  be  in- 
consistent with  reason  and  common  sense — to  hold  that  a  general 
denial,  like  the  plea  of  nonassumpsit,  put  in  issue  nothing  but  the 
execution  of  the  bond.     An  offer  to  prove  payment  is  not  in 


Sec.  2.J 


B-VRKER    V.    WHEELER. 


G83 


every  case  an  implied  admission  that  the  pl^aintiff  once  had  an 
;;:;innable  demand  against  the  detendant ;  Its  purpose  mayBeT 
^ThTthis  case,  to  prove  th_at^  right  of  action  never  existed. 


Eller  received  the  money  in  question  rightfully.  His  possession 
of  it  as  county  judge  was  lawful,  and  there  is  no  presumption 
that  he  was  guilty  of  official  misconduct.  The  allegation  of 
conversion  was,  therefore,  a  material  one,  and  it  was  not  ad- 
mitted by  the  general  denial.  Payment  was  not  new  matter, 
within  the  meaning  of  section  99  of  the  Code  of  Civil  Procedure, 
for  it  was  offered,  not  to  show  the  discharge  of  an  obligation  that 
once  existed,  but  to  show  that  the  bond  had  not  been  forfeited, 
as  alleged,  that  Eller  had  not  been  guilty  of  official  misconduct, 
that  th'e  plaintiff  had  not  been  injured ;  in  short,  that  one  of  the 
essential  averments  of  the  petition  was  not  true.  In  State  v. 
Peterson  (:^Io.  Sup.),  39  S.  W.  453,  which  was  an  action  upon  an 
official  bond,  the  court,  speaking  by  Macfarlane,  J.,  said  that 
**in  cases  in  which  nonpayment  is  a  material  fact  necessary  to 
constitute  a  cause  of  action,  it  must  be  alleged  and  proved  as 
part  of  plaintiff's  case,  and  defendant  can  controvert  it,  under 
a  general  denial,  by  proof  that  payment  was  made."  Other 
cases  to  the  same  effect  are  Manufacturing  Co.  v.  Tinsley,  75 
Mo.,  458,  and  Knapp  v.  Roche,  94  N.  Y.,  329.  The  case  of  Hudel- 
son  V.  Bank,  supra,  does  not  at  all  support  the  position  for  which 
the  plaintiff  contends.  It  merely  decides  that,  in  an  action  by  a 
mortgagee  for  possesion  of  mortgaged  chattels,  an  allegation  of 
nonpayment  of  the  mortgage  debt  is  indispensable.  The  legal 
effect  of  a  general  denial  was  not  determined,  nor  was  there  any 
occasion  to  consider  the  question,  as  the  statute  declares  the  ef- 
fect of  such  a  denial  in  actions  of  replevin. 

The  judgment  heretofore  rendered  in  this  court  is  set  aside, 
the  judgment  of  the  district  court  is  reversed,  and  the  cause 
remanded  for  further  procedings.  "^j^^   ^^"■*^ 

Reversed  and  remanded. 


4ba 


ti84  THE  A2JSWER.  [CllAl'.  iV. 

LITTLE  V.  REID. 
IIJ  Mo.,  2i2.     [1897.] 

Babclay,  p.  J.  Thus  action  was  begun  April  19,  1895.  The 
plaintilT  is  J.  :M.  Little.  The  defendants  are  .las.  H.  Reid,  as 
administrator  of  the  estate  of  Danitd  lientk-y,  deeeased,  Matilda 
Bentley  (the  widow  of  Daniel),  and  Joseph  Littli*.  The  objects 
of  the  action  are  to  foreclose  a  niorti:aj,'e  or  deed  of  trust  con- 
veying certain  real  estate,  and  to  obtain  a  judgment  for  the  debt 
thereby  secured.  The  deed  of  trust  in  the  nature  of  a  mortgage, 
which  is  the  foundation  of  the  action,  was  executed  by  Daniel 
Bentley  and  his  wife,  .Matilda,  October  3,  1882,  to  secure  a  note 
to  plaintifT  for  $630,  payable  twelve  months  after  date,  with  in- 
terest at  eight  percent  per  annum  to  be  compounded  annually. 
Joseph  Little  was  named  as  trustee,  with  certain  powers  of  .sale 
in  event  of  default.  This  deed  of  trust  was  properly  recorded. 
The  land  conveyed  thereby  as  security  consisted  of  some  ninety 
acres  in  Boone  county. 

June  8,  1892,  ^Ir.  Bentley  died  intestate.  His  widow  remained 
in  possession  of  the  land;  but  no  administration  was  had  upon 
his  estate  until  April  5,  1895,  when  the  probate  court  ordered 
defendant  Jas.  II.  Keid,  to  take  charge  as  i)ublic  administrator. 
The  foregoing  exhibits  the  special  features  of  the  petition,  which 
in  other  respects  states  an  ordinary  case  for  the  foreclasure  of 
the  mortgage.  The  trustee  and  the  widow,  who  are  defendants, 
filed  no  answer.  The  administrator  defended.  He  admitted  the 
death  of  Mr.  Bentley  and  his  own  statiLs  as  personal  represent- 
ative, but  denied  the  other  allegations  of  the  petition.  The  answer 
also  set  up  the  following  special  defenses : 

"And  for  his  further  answer,  this  defendant  saj^s  that  plaintiff 
is  estopped  from  bringing  or  maintaining  this  suit  for  the  reason 
that  more  than  ten  years  have  expired  prior  to  the  institution 
of  this  suit  since  the  execution  of  the  note  and  deed  of  trust 
described  in  plaintiff's  petition,  and  that  the  same  are  now  more 
than  ten  years  old  and  are  therefore  barred  by  the  statute  of 
limitations  of  the  State  of  Missouri,  which  this  defendant  sets 
up  and  pleads  as  a  special  defense  in  bar  of  plaintiff's  recovery 
in  this  action.  And  this  defendant  would  also  plead  and  rely 
upon,  as  a  special  defense  to  the  foreclosure  of  the  deed  of  trust 


Sec.  2.]  little  v.  reid.  685 

described  in  plaintiff's  petition,  the  act  of  the  General  Assembly 
of  the  State  of  Missouri,  passed  and  approved  February  18th, 
1891."    The  reply  to  the  answer  is  a  general  denial. 

At  the  trial  defendant  offered  to  prove  that  the  deceased,  Mr. 
Bentley,  had  been  in  adverse,  open,  notorious  and  peaceable  pos-  X>-  \j  icFLv* 
session  of  the  f)remises  in  controversy,  claiming  the  same  against^.  ^a^^^».„jL. 
the  interest  of  everyone,  including  plaintiff,  from  1872  until  his  j^  x.^,o-A-  ^ 
death  in  1S92.  The  learned  trial  judge,  however,  rejected  that  j^,^^^^  o-A'^-^*^ 
offer  and  excluded  all  testimony  thereunder.  It  will  not  be  neces-  ^ 
sary  to  go  into  further  particulars  of  the  trial.  It  will  suflSce  to 
say  that  the  court  ultimately  found  for  plaintiff,  decreed  a  fore- 
closure, adjudged  the  sum  of  .$1,729.75  to  be  due  on  the  note 
secured,  and  directed  the  demand  to  be  certified  to  the  probate 
court  for  allowance  of  any  residue  that  might  remain  duo,  after 
the  foreclosure  sale  which  was  decreed.  The  defendant  appealed 
from  the  decree,  after  certain  motions  and  other  steps  in  the 
circuit  court. 

The  only  question  we  shall  touch  at  this  time  is  whether  or 
not  this  court  has  juri.sdiction  of  this  appeal.  Counsel  appear 
entirely  willing  to  have  the  merits  considered  here.  But  it  is 
part  of  our  duty  to  observe  the  limitations  on  our  authority, 
and  hence  to  examine  into  the  question  just  stated.  McGregor 
V.  Pollard  (1895)  130  Mo.  334  (32  S.  W.  Rep.  640). 

We  discern  no  ground  on  which  jurisdiction  over  this  case  can 
be  maintained  by  this  court.  The  only  class  of  ca.ses  belonging 
here  that  might  possibly  be  suggested  as  including  the  case  at 
bar  is  the  class  "involving  title  to  real  estate."  Const.  1875, 
art.  6,  sec.  12.  But  it  has  been  often  declared  that  title  Is  not 
involved  in  a  mere  suit  to  foreclose  a  mortgage.  State  ex  rel. 
v.  Court  of  Appeals  (1S77),  67  Mo.  199;  Pinneo  v.  Knox  (1881), 
100  111.  471;  Bailey  v.  Winn  (1890),  101  Mo.  649  (12  S.  W.  Rep. 
1045) ;  Barber  Pa  v.  Co.  v.  Hezel  (1897),  139  Mo.  228  (39  S.  W. 
Rep.  781). 

The  defenses  put  forward  by  defendant  in  his  answer  only 
assert  that  the  foreclosure  is  barred  by  the  limitation  law.  The 
offer  of  defendant  to  show  adverse  title  (as  against  the  mortgage) 
was  beyond  the  issues  of  the  pleadings.  The  plaintiff  objected  to 
entering  that  foreign  field,  and  the  court  sustained  the  objection. 
The  rejected  offer  can  not  be  properly  held  to  have  enlarged  the 
paper  issues  in  the  case.  The  general  denial  in  the  answer  did 
not  raise  an  issue  of  title  in  a  case  of  this  sort.    Nor  could  that 


686  THE  ANSWER.  (ClIAl*.  IV. 

issue  be  projeeteil  into  the  cause  at  the  trial,  in  the  niauner 
attempted,  ay;ainst  the  protest  and  objection  of  the  plaintiff. 

It  is  true  that,  in  actions  of  eji ctnient,  title  by  advt  ise  i)08- 
session  may  be  shown  under  a  ^^-tu-ral  denial  of  the  alK't^Mtinn  of 
title  in  plaintiff.  That  rule  must  be  accepted  as  settled  hy  a  line 
of  decisions  in  this  State.  Nelson  v.  Bradhack  (1869),  44  Mo. 
596;  Bledsoe  v.  Sirams  (1873),  53  Mo.  307;  Stoeker  v.  Oreen 
(1888),  94  Mo.  280  (7  S.  W.  Rep.  279).  But  the  prop.;.sition 
established  by  those  decisions  gives  no  sanction  to  the  wide  ex- 
tension of  its  application  soujrht  by  the  defendant  here.  I'nder 
the  answer  (of  which  a  part  has  been  above  (juoted )  the  deed 
of  trust  must  be  considered  admitted.  The  present  riizht  t+)  en- 
force it  is  disputed,  owinj.;  to  the  laps^'  of  time;  but  its  ori^'inal 
effect  as  a  conveyance  of  the  title  is  plainly  conceded.  Such  is 
a  fair  and  rea.sonable  interpretation  of  the  answer  of  the  ad- 
ministrator. The  other  defendants  admitted  the  plaintiff's  en- 
tire contention  by  their  default.  In  that  state  of  the  ph-adin^ 
tjie  offer  of  proof  of  an  adverse  title  was  clearly  irrelevant..  It 
was  not  admissible  under  the  principles  of  pleadinj;  discussed 
in  the  group  of  precedents  last  cited,  nor  for  any  reason  that 
has  as  yet  been  suggested. 

In  our  judgment  the  Supreme  Court  has  no  jurisdiction  of 
this  appeal.  It  is  therefore  certified  to  the  Kansas  City  Court 
of  Appeals.    Macfarlane,  Robinson  and  Brace,  J.  J.,  concur. 


kcn.    ^^-"^ — ^    ' 


Section  3.     Equitable  Defences. 

J.  R.  v.  M.  P.*  ^ 

Jenkins  Century  Cdses,  108.     [1459.1 

Several  persons  were  in  debt  to  A.  B  buys  these  debts  from 
A,  and  upon  this.  B  enters  into  an  obligation  of  £1,000  to  pay 
A  £500  at  a  certain  day ;  B  sues  A  in  Chancery  to  be  discharged 
from  his  bond,  because  the  debts  assigned  to  him  can  only  be 
released  by  A,  and  only  be  sued  in  A's  name,  being  things  in 
action;  and  so  the  bond  was  given  without  any  valuable  consid- 

*For  the  full  report  of  this  case,  see  Y.  B.,  37  Henry  VI.  13,  and  see 
also  a  translation  by  Professor  Ames,  Cases  Eq.  Jur.  1. 


J.  R.  V.  M.  P.  687 


Sec.  3.] 

eration:  a  decree  was  made  by  the  advice  of  the  judges,  that  this  t<^j,^ 

bond  of  B  's  should  be  discharged.  r 

If  after  this  decree,  A  sues  B  upon  his  bond  in  the  court  of 
Common  Pleas,  and  B  pleads  this  decree;  the  court  will  reject 
this  plea ;  for  the  Common  Law  proceeds  upon  certain  fixed  and 
invariable  rules;  the  Chancery  proceeds  at  the  discretion  of  a 
good  man.  A  decree  there  binds  a  person  to  obedience,  but 
does  not  at  all  operate  upon  the  matter  in  ([uestion. 

Buying  of  debts  is  maintenance  at  Common  Law,  and  punish- 
able by  indictment  or  information ;  but  it  is  not  pleadable  in  bar 
of  this  obligation;  for  the  condition  of  the  obligation  wa.s  to  pay 
a  sum  of  money,  not  for  debts  bought;  and  this  buying  is  col- 
lateral to  the  condition. 

A  bond  for  the  payment  of  a  sum  of  money  upon  condition, 
in  the  case  of  simony ;  the  simony  may  be  pleaded  against  such 
bond  by  virtue  of  the  31  El.  Cap.  1.  So  for  usury  by  13  El.  Cap. 
8.  So  against  a  bond  given  to  the  sheriff  or  gaoler  contrary  to 
the  statute  of  23  IL  6  Cap.  10.  These  statutes  give  averments 
in  such  cases;  but  there  is  no  statute  which  gives  such  averment 
in  the  ease  of  maintenance.  The  advice  of  the  judges  in  the 
principal  case  was  upon  the  examination  of  the  matter  in  equity. 
At  Common  Law,  in  a  suit  upon  an  obligation  with  a  condition  to 
pay  a  sum  of  money,  no  collateral  matter  is  pleadable  to  avoid 
it.  lie  who  has  a  decree  in  Chancery  proceeds  by  attachment 
against  the  party  against  whom  the  decree  was  made. 


VAN  SYCKEL  v.  DALRYMPLE. 

32  N.  J.  Eq.,  233.     [1880.] 

The  Vice-Chancellor  (Van  Fleet)  :  This  suit  is  founded  on 
a  mortgage  made  by  the  defendant  to  one  Henry  Johnson,  bear- 
ing date  March  30th,  1872,  and  payable  April  1st,  1873.  Johnson 
sold  the  mortgaged  premises  to  the  defendant,  and  the  mortgage 
was  given  in  payment  of  part  of  the  purchase  money.  The  de- 
fence set  up  is :  That  the  mortgage  does  not,  in  a  material  point, 
conform  to  the  contract  under  which  it  was  given.  The  defend- 
ant says  that,  at  the  time  he  made  the  purchase,  he  told  Johnson 
he  could  not  purchase  if  he  was  to  be  required  to  put  the  prop- 
erty in  repair  and  also  pay  the  principal  of  the  mortgage  to  be 


6g8  THE  ANSWER.  [Cu.vr.  IV. 

given,  during  Johnson's  life,  and  that  thereupon  Johnson  agreed 
that  the  mortgage  should  not  be  due  and  payable  during  his  life, 
provided  the  defendant  Ui'pt  the  interest  paid  up  and  put  the 
property  in  repair  and  kept  it  so. 

On  the  final  hearing  the  defendant  offered  to  show  an  oral 
contract  substantially  like  that  set  up  in  his  answer.  His  evi- 
dence was  held  to  be  inadmissible,  and  his  defence  unavailable, 
without  a  cross-bill  seeking  to  reform  the  mortgage.  Leave  to 
file  a  cross-bill  was  not  asked,  nor  was  it  intimated  that,  if  fur- 
ther proceedings  in  the  suit  were  temporarily  delayed,  a  cross- 
bill would  be  filed.  The  answer  imputes  no  fraud  or  wrong  to 
Johnson  in  the  preparation  or  execution  of  the  mortgage.  It 
does  not  charge  that  Johnson  had  the  mortgage  drawn,  or  was 
present  at  its  execution.  It  is  silent  as  to  who  procured  the 
mortgage  to  be  di-awn,  and  it  must  therefore  be  presumed  that 
it  was  drawn  at  the  instance  and  according  to  the  instructions,  of 
the  person  who  executed  it.  If  the  mortgage  contains  a  mistake, 
it  would  seem  to  be  pretty  clear  that  the  complainant  is  not 
responsible  for  it. 

The  defendant  seeks  to  avail  himself  of  this  defence  by 
answer  alone.  The  question,  it  will  be  perceived,  is  not  whether 
this  court  can,  upon  appropriate  pleadings,  reform  the  mortgage, 
but,  can  it,  in  the  present  condition  of  the  pleadings,  give  effect 
to  the  alleged  oral  contract,  so  as  to  make  the  mortgage  read 
entirely  different  from  its  written  language?  The  law  upon  this 
subject  is  rudimental.  Oral  evidence  is  admissible  to  reform  a 
written  instrument,  or  to  subvert  or  overthrow  it  entirely,  but  not 
to  vary  or  alter  it.  The  general  rule  may  be  thus  expressed : 
When  the  parties  to  a  contract  have  deliberately  put  their  en- 
gagements into  writng,  in  such  terms  as  import  a  legal  obligation, 
without  any  uncertaintj'^  as  to  the  object  or  extent  of  their  en- 
gagements, it  is  conclusively  presumed  that  every  part  of  their 
contract  was  reduced  to  writing,  and  all  oral  evidence,  therefore, 
of  what  was  said  during  the  negotiations  of  the  contract,  or  at 
the  time  of  its  execution,  must  be  excluded  on  the  ground  that  the 
parties  must  have  made  the  writing  the  only  repository  and  me- 
morial of  the  truth,  and  whatever  is  not  found  in  the  writings 
must  be  understood  to  have  been  waived  and  abandoned.  A  rule 
so  elementary  and  familiar  need  not  be  vouched  for  by  authori- 
ties. The  following  eases  are  cited  merely  to  illustrate  its  appli- 
cation :    Chetwood  v.  Brittan,  1  Gr.  Ch.  448 ;  S.  C.  3  Gr.  Ch.  33G  : 


Sec.  3.]  v.vn  syckel  v.  dalkymple.  689 

S.  C.  on  appeal,  1  Hal.  Ch.  628 ;  Dewees  v.  Manhattan  Insurance 
Company,  6  Vr.  372 ;  Chubb  v.  Peckam,  2  Beas,  207 ;  Huffman  v. 
Hummer,  2  C.  E.  Gr.  269;  French  v.  Griffin,  3  C.  E.  Gr.  280; 
Locander  v.  Lounsbury,  9  C.  E.  Gr.  420. 

Even  fraud  in  the  consideration  of  a  mortgage,  which  does  not     \ 
go  the  extent  of  completely  overthrowing  the  instrument,  can 
only  be  made  available  to  the  defendant  in  a  foreclosure  suit  by|  ^ 
cross-bilL     (.Miller  v.  Gregory,  1  C.  E.  Gr.,  274;  O'Brien  v.  Hul- 
Mi,  7  C.  E.  Gr.,  471.) 

The  defndant's  evidence  is  inadmissible,  and  the  complainant 
is,  consequently,  entitled  to  a  decree. 


FORD  V.  DOUGLAS,  v^. 

5  Howard  (U.  S.),  US.     [1816.] 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court: 
This  is  an  appeal  from  a  decree  of  the  Circuit  Court  of  the 
United  States,  held  in  and  for  the  Eastern  District  of  the  State 

of  Louisiana. 

The  complainants  below,  the  appellees  here,  filed  their  bill 
against  Chri.stopher  Ford,  the  appellant,  and  Robertson,  the 
niarshal  of  the  district,  for  the  purpose  of  obtaining  injunctions 
to  stay  proceedings  upon  the  several  judgments  and  executions, 
which  Ford  had  recovered  in  the  Circuit  Court  of  the  United 
States  against  one  Stephen  Douglas,  as  executor  of  J.  S.  Douglas, 
deceased. 

The  judgments  amounted  to  some  $18,000,  and  the  marshal 
liad  levied  upon  two  plantations,  and  the  slaves  thereon,  of 
which  the  testator,  J.  S.  Douglas,  had  died  seized  and  posses.sed. 

The  bill  set  forth  that  Stephen  Douglas,  against  whom  the 
judgments  had  been  recovered,  neither  in  his  own  right  nor  as 
executor  of  J.  S.  Douglas,  deceased,  had  any  title  to  or  interest 
in  the  plantations  and  slaves  which  had  been  seized  under  and 
by  virtue  of  the  said  executions ;  and  that  the  same  formed  no 
part  or  portion  of  the  succession  in  the  hands  of  said  executors 
to  be  administered.  But  that  the  whole  of  the  said  plantation 
and  slaves,  including  the  crops  of  cotton  and  all  other  things 
thereon,  were  the  true  and  lawful  property  of  the  complainants; 
44 


690  THE  ANSWKK.  [CUiU'.  IV. 

that  they  were  in  the  hiwful  possession  of  the  same,  and  had  been 
for  a  km!.,'  time  before  the  issuing  of  the  executions  and  seizure 
complained  of;  and  had  acquired  the  said  property,  and  the  title 
thereto,  at  a  probate  sale  of  all  the  property  belonging,'  to  the 
estate  and  succession  of  the  said  testator— which  sale  was  law- 
fully made,  and  vested  in  the  complainants  a  good  and  valid 
title.  All  which  would  appear  by  the  proccs  verbal  of  the  said 
adjudications,  and  the  mortuary  proceedings  annexed  to  and 
forming  a  part  of  the  bill. 

An  injunction  was  granted,  in  pursuance  of  the  prayer  of  the 
bill,  staying  all  proceedings  on  the  judgments  rendered  in  the 
three  several  suits,  and  also  on  the  executions  issued  thereon 
against  the  property. 

Christopher  Ford,  the  adjudged  creditor,  in  answer  to  tin-  bill, 
denied  the  validity  of  the  probate  sales  of  the  j)lantations  and 
slaves  to  the  complainants,  and  charged  that  they  were  effected, 
and  the  pretended  title  thereto  acquired  by  fraud  and  covin 
between  the  executor,  Stephen  Douglas,  and  the  executrix,  the 
widow  of  the  testator,  and  one  of  the  complainants,  for  the  pur- 
pose of  hindering  and  defrauding  the  creditors  of  the  estate; 
that  in  furtherance  of  this  design,  a  large  amount  of  simulated 
and  fraudulent  claims  of  the  executor  and  executrix  were  pre- 
sented against  the  succession,  to-wit,  .^•'3:3,000  and  upwards,  in 
favor  of  the  former,  and  $7G,000  and  upwards  in  favor  of  the 
latter,  which  were  received  and  allowed  by  the  Probate  Court, 
without  any  vouchers  or  legal  evidence  of  the  genuineness  of  the 
debts  against  the  estate;  and  these  simulated  and  fraudulent 
claims  were  made  the  foundation  of  an  application  to  the  said 
Probate  Court  for  an  order  to  sell  the  two  plantations,  and  slaves 
thereon,  under  w'hich  the  widow  and  Archibald  Douglas  became 
the  purchasers  at  the  probate  sale;  that  neither  had  paid  any 
part  of  the  purchase  money  to  the  executor  or  Probate  Court; 
and  which  was  the  only  title  of  the  complainants  to  the  property 
in  question,  upon  which  the  defendant  had  caused  the  execu- 
tions to  be  levied. 

In  confirmation  of  the  fraud  thus  alleged  in  the  probate  sales 
in  the  parish  of  Madison  and  the  State  of  Louisiana,  the  defend- 
ant further  charges  that  the  testator  died  seized  and  possessed, 
also,  of  a  large  plantation,  and  slaves  and  personal  property 
therein  situate  in  the  County  of  Clairborne  and  State  of  Miss- 
issippi, inventoried  at  upwards  of  $70,000,  besides  notes  and  ac- 


Sec.  3.]  ford  v.  douglas.  C91 

counts  to  the  amount  of  $161,000  and  upwards;  that  the  said 
plantations  and  slaves  were^  on  application  of  Stephen  Douglas, 
the  executor,  to  the  Probate  Court  in  that  state,  and  an  order 
for  that  purpose  obtained,  sold  and  purchased  in  by  the  widow 
and  executrix  for  about  the  sum  of  $40,000,  and  that  the  personal 
estate  of  $161,000  and  upwards,  of  notes  and  accounts,  were  not, 
and  have  not  been,  accounted  for  by  the  executor  to  the  Court  of 
Probate, 

In  short,  according  to  the  answer  of  the  defendant,  the  estate 
and  successi(m  of  the  deceased  debtor,  inventoried  at  about  the 
sum  of  $300,000,  and  for  aught  that  appears  available  to  that 
amount,  has  ben  sold  and  transferred  through  the  instrumen- 
tality and  agency  of  family  connections,  under  color  of  proceed- 
ings apparently  in  due  form  in  the  Probate  Court,  into  the  hands 
of  the  widow  and  a  brother  of  the  deceased,  without  ade(|uate 
consideration,  if  consideration  at  all,  and  with  intent  to  hinder 
delay  and  defraud  the  creditors  of  the  estate,  and  particularly 
the  defendant. 

The  complainants  excepted  to  the  answer  filed  by  the  defend- 
ant, because  the  matter  and  doings  set  forth  therein  could  not 
in  law  be  inquired  into  in  the  present  suit,  or  proceedings  insti- 
tuted by  the  said  complainants,  and  prayed  that  they  might  have 
the  benefit  of  their  injunction,  and  that  it  might  be  made  per- 
petual. 

And  thereupon  it  was  agreed  that  the  case  might  be  set  down 
for  argument  on  the  matters  of  law  arising  on  the  bill  and  an- 
swer; and  that  if  the  judgment  of  the  court  in  matters  of  law 
should  be  for  the  defendant,  the  complainants  might  join  issue 
on  the  fact,  and  testimony  be  taken  in  the  usual  manner. 

The  court,  after  argument  of  counsel,  decreed  that  the  excep- 
tion of  the  complainants  to  the  defendant's  answer  was  well 
taken,  and  gave  leave  to  answer  over,  which  was  declined;  and, 
therefore,  the  court  adjudged  and  decreed  that  the  injunction 
theretofore  awarded  in  the  case  should  be  made  perpetual ;  and 
it  was  further  adjudged  and  decreed  that  complainants  recover 
the  costs  of  suit,  without  prejudice  to  the  right  of  the  defendant 
to  any  action  he  might  think  proper. 

The  decision  of  the  court  below,  and  the  view  which  we  have 
taken  of  the  case  here,  do  not  involve  the  question  whether  the 
matters  set  forth  in  the  answer  sufficiently  established  the  fact 
that  a  fraud  had  been  committed  by  the  complainants  against 


692  THE  ANSWER.  [CUAP.  IV. 

creditors,  in  tho  several  sales  and  transfers  of  the  property  in 
question,  through  the  instrumentality  of  the  Probate  Court,  nor, 
as  it  respects  the  effect  of  the  fraud,  if  established,  upon  the  title 
derived  under  these  sales.  If  the  ca.se  depended  upon  the  de- 
cision of  these  questions,  we  entertain  little  doubt  as  to  the  judg- 
ment that  should  be  given. 

The  ground  of  decision  below  and  of  the  argument  here  is 
that  the  complainants  were  not  bound  to  answer  the  allegations 
of  fraud  against  their  title,  in  the  aspect  in  which  the  case  was 
presented  to  the  court ;  that  a  title  derived  under  a  public  sale, 
in  due  form  of  law,  by  the  probate  judge,  protected  them  in  the 
full  and  jxuiceable  possession  and  enjoyment  of  the  property 
until  the  conveyance  was  vacated  and  set  aside  by  a  direct  pro- 
ceeding instituted  for  that  purpose;  and  that  this  step,  on  the 
part  of  tlie  judgment  creditors,  was  essential,  upon  the  estab- 
lished law  of  the  state  of  Louisiana,  before  he  could  subject  the 
property  to  the  satisfaction  of  his  judgment. 

We  have,  accordingly,  looked  into  the  law  of  that  state  on  this 
subject,  and  find  the  principle  contended  for  well-settled  and 
uniformly  applied  by  its  courts  in  cases  like  the  present.  The 
judgment  creditor  is  not  permitted  to  treat  a  conveyance  from 
the  defendant  in  the  judgment  made  by  authentic  act,  or  in  pur- 
suance of  a  judicial  sale  of  the  suceession  by  a  probate  judge,  as 
null  and  void,  and  to  seize  and  sell  the  property  which  has  thus 
passed  to  the  vendee.  The  law  requires  that  he  should  bring  an 
action  to  set  the  alienation  aside,  and  succeed  in  the  same,  before 
he  can  levy  his  execution.  And  so  firmly  settled  and  fixed  is  this 
principle  in  the  jurisprudence  of  Louisiana^  as  a  rule  of  property, 
and  as  administered  in  the  courts  of  that  state,  that  even  if  the 
sale  and  conveyance  by  authentic  act,  or  in  pursuance  of  a 
judicial  sale,  are  confessedly  fraudulent  and  void,  still  no  title 
passes  to  a  purchaser  under  the  judgment  and  execution,  not  a 
creditor  of  the  vendor,  so  as  to  enable  him  to  attack  the  convey- 
ance, and  obtain  possession  of  the  property.  In  effect  the  sale,  if 
permitted  to  take  place,  is  null  and  void,  and  passes  no  title. 
(Henry  v.  Hyde,  5  Martin  (N.  S.),  633 ;  Yocum  v.  Bullitt,  6  Ibid., 
234;  Peet  v.  Morgan,  6  Ibid.,  137;  Childress  v.  Allen,  3  Louisiana, 
477 ;  Brunet  v.  Duvergis,  5  Ibid.  ,124 ;  Samory  v.  Hebrard  et  al., 
17  Ibid.,  558.) 

The  case  of  Yocum  v.  Bullitt  et  al,  among  many  above  re- 
ferred to,  is  like  the  one  before  us. 


Sec,  3.]  ford  v.  douglas.  693 

The  court  there  says :  ' '  The  record  shows  that  the  slaves  had 
been  conveyed  by  the  defendant  in  the  execution  by  a  sale  under 
the  private  signature  recorded  in  the  office  of  the  parish  judgv  of 
St.  Landry,  where  the  sale  was  made.  If  the  sale  was  fraudulent 
it  must  be  regularly  set  aside  by  a  suit  instituted  for  that  pur- 
pose; that  it  was  not  less  a  sale  and  binding  upon  third  parties 
until  declared  null  in  an  action  which  the  law  gives  (Curia  Phil. 
Ixevocatoria,  n.  2)  ;  that  the  possession  of  the  vendee  was  a  legal 
one,  until  avoided  in  due  course  of  law."  The  court  further  re- 
marked that  "The  same  point  had  been  determined  at  the  preced- 
ing term,  in  which  it  had  been  held  that  a  conveyance  alleged  to 
be  fraudulent  could  not  be  tested  by  the  seizure  of  the  property 
or  estate  belonging  to  the  vendor,  but  an  action  must  be  brought 
to  annul  the  conveyance." 

The  principle  runs  through  all  the  cases  in  the  books  of  reports 
in  that  state,  and  has  its  foundation  in  the  Civil  Code  (art.  1965, 
1973,  198-4),  and  in  the  Code  of  Practice  (Sec.  3,  art.  298,  301, 
604,  607),  and  in  Stein  v.  Gibbons  &  Irby  (16  Louisiana,  103). 
And  from  the  course  of  decision  on  the  subject,  it  is  to  be  re- 
garded not  merely  as  a  rule  of  practice,  or  mode  of  proceeding  in 
the  enforcement  of  civil  rights,  which  would  not  be  binding  upon 
this  court,  but  as  a  rule  of  property  that  effects  the  title  and 
estate  of  the  vendee,  and  cannot,  therefore,  be  dispensed  with 
without  disturbing  one  of  the  securities  upon  which  the  rights  of 
])roperty  depend.  It  gives  strength  and  stability  to  its  possession 
and  enjoyment,  by  forbidding  the  violation  of  either,  except  upon 
legal  proceedings  properly  in.stituted  for  the  purpose.  Neither 
can  be  disturbed,  except  by  judgment  of  law.  For  this  purpose 
the  appropriate  action  is  given,  providing  for  the  secession  of  all 
contracts,  as  well  as  for  revoking  all  judgments  when  founded  in 
fraud  of  the  rights  of  creditors. 

In  this  court,  a  bill  filed  on  the  equity  side  is  the  appropria+e 
remedy  to  set  aside  the  conveyance.  In  the  present  case  a  cross- 1\ 
bill  should  have  been  filed,  setting  forth  the  matters  contained! 
in  the  answer  of  the  defendant.  The  vendees  would  then  have 
had  an  opoprtunity  to  answer  the  allegations  of  fraud  charged  in 
the  bill,  and,  if  denied,  the  parties  could  have  gone  to  their  proofs, 
and  the  case  disposed  of  on  its  merits. 

It  is  said  that  in  some  of  the  Western  States  an  answer  like 
the  one  in  question  would  be  regarded  by  their  courts  in  the 
nature  of  a  cross-bill,  upon  which  to  found  proceedings  for  the 


694  TiiE  ANSWER.  [Chap.  IV. 

purpose  of  setting  aside  the  fraudulent  conveyance.  But  the 
practice  in  this  court  is  otherwise,  and  more  in  conformity  with 
the  established  course  of  proceeding  in  a  court  of  equity. 

We  are  of  opinion,  therefore,  that  the  appellant  mistook  his 
rights  in  attempting  to  raise  the  question  of  fraud  in  the  probate 
sales  in  his  answer  to  the  injunction  bill ;  and  that,  instead  there- 
of, he  should  have  filed  a  cross-bill,  and  have  thus  instituted  a 
direct  proceding  for  the  purpose  of  setting  a.side  the  sales  and 
subjecting  the  property  to  his  judgments  and  executions;  and 
that  in  this  respect,  and  to  this  extent,  the  decree  of  the  court 
below  was  correct. 

But  on  looking  into  the  decree,  we  are  apprehensive  that  it  has 
been  carried  further  than  the  assertion  of  the  principle  which 
we  are  disposed  to  uphold,  and  which  may  seriously  embarrass 
the  appellant  in  the  pursuit  of  a  remedy  that  is  yet  clearly  open 
to  him. 

The  injunction  issued,  on  filing  the  bill  of  complainants,  com- 
manded the  appellant  to  desist  from  all  further  proceedings  on 
his  three  judgments,  or  on  the  executions  issued  against  the  prop- 
erty ;  and  the  court  on  the  coming  in  of  the  answer,  has  decreed 
that  the  same  be  made  perpetual.  And,  further,  that  the  com- 
plainants recover  costs  of  suit,  without  prejudice  to  the  right  of 
the  defendant  to  any  action  he  may  think  proper. 

It  is  at  least  a  matter  of  doubt,  and  might  be  of  litigation  here- 
after, whether,  upon  the  broad  and  absolute  terms  of  the  decree 
used  in  enjoining  the  proceedings,  the  party  is  not  concluded 
from  further  proceedings  against  the  property  in  question, 
founded  upon  these  judgments  and  executions. 

They  must  constitute  the  foundation  of  his  right  and  title,  upon 
filing  a  cross-bill,  to  any  relief,  that  he  may  hereafter  show  him- 
self entitled  to.  The  saving  clause  may  not  be  regarded  as  neces- 
sarily leaving  a  proceeding  of  this  description  open  to  him.  A 
question  might  also  be  raised,  w^hether  the  judgments  are  not  so 
effectually  enjoined,  as  to  prevent  their  enforcement  against  the 
property  of  the  judgment  debtor  not  in  controversy  in  this  suit. 
At  all  events,  we  think  it  due  to  the  appellant,  and  justice,  look- 
ing at  the  nature  and  character  of  the  transaction  and  proceeding 
as  developed  in  the  pleadings,  that  the  case  should  be  cleared  of 
all  doubts  and  dispute  upon  this  point.  We  shall,  therefore,  re- 
verse the  decree,  and  remit  the  proceedings  to  the  court  below, 
with  directions  that  all  further  proceedings  on  the  three  judg- 


Sec.  3.]  ford  v.  douglas.  695 

ments  and  executions  be  stayed,  as  it  respects  the  property  seized 
and  in  question,  but  that  the  appellant  have  liberty  to  file  a  cross- 
bill, and  take  such  further  proceedings  thereon  as  he  may  be 
advised. 

Decree  reversed. 


J 


BECK  V.  BECK. 

43  N.  J.  Eq.,  39.     [1887.] 

Van  Fleet,  V.  C. :  This  is  a  suit  by  a  wife  against  her  hus- 
band to  compel  him  to  account  for  the  rents  of  certain  real  estate 
which  she  says  he  has  collected  as  her  agent.  The  parties  were 
married  in  August,  1854.  The  complainant  holds  the  legal  title 
to  the  two  pieces  of  real  estate  in  the  city  of  Newark.  The  first 
was  conveyed  to  her  in  August,  1859,  and  is  situate  on  Springfield 
avenue.  The  second  was  conveyed  to  her  in  November,  1877,  and 
is  situate  on  the  corner  of  New  and  Plane  streets.  There  are 
buildings  on  both  tracts,  which  have  been  almost  constantly  occu- 
pied by  tenants  since  the  complainant  obtained  title.  The  defend- 
ant has  collected  all  the  rents,  but  has  neither  paid  nor  accounted 
to  the  complainant  for  them.  The  complainant,  by  her  bill,  says 
that  she  authorized  the  defendant  to  collect  the  rents,  with  the 
understanding  that  he  should  apply  them  to  the  payment  of  taxes 
and  other  necessary  annual  charges  of  the  premises,  and  also  in 
making  such  improvements  on  the  premises  as  would  inure  to  her 
benefit,  and  account  to  her  from  time  to  time  for  any  balance 
which  remained  in  his  hands.  The  complainant  revoked  the  de- 
fendant's agency  in  October,  1886,  but  he,  notwithstanding,  per- 
sisted in  attempting  to  collect  the  rents,  and  because  some  of  the 
tenants  refused  to  pay  rent  to  him  he  instituted  legal  proceedings 
to  dispossess  them.  The  complainant  then  brought  this  suit,  ask- 
ing that  the  defendant  might  be  required  to  account  for  the  rents 
he  had  already  received,  and  also  that  he  be  restrained  from 
making  further  collections,  and  from  molesting  or  annoying  her 
tenants.  The  defendant  has  answered,  denying  the  complainant's 
right  to  an  account.  He  says  that  he  is  the  real  owner  of  both 
tracts.  His  claim  in  this  regard  is  put  upon  the  ground  of  a 
resulting  trust.  He  says  that  he  made  the  contract  of  purchase 
for  each  tract,  and  subsequently  paid  the  whole  of  the  purchase 


696  TIJE   ANiJWEB.  [Cu.U'.  IV. 

money  with  his  own  funds,  liis  wife  not  contributing,'  a  penny. 
He  likewise  says  that  he  caused  the  le{,'al  title  to  the  lauds  to  be 
made  to  his  wife,  but  that  he  did  so  without  either  an  a^'reement 
or  purpose  to  make  a  gift  to  her,  or  a  settlement  upon  her,  and 
that  the  lands  have  always,  since  she  obtained  title,  been  treated 
and  considered  as  belonyinr^  to  him,  she  holdinj;  the  le<:al  title  in 
trust  for  him.  The  defendant  puts  his  right  to  the  reuUi  of  the 
property  on  the  corner  of  New  and  Plane  streets  on  an  additional 
ground.  lie  says  that  property  was  sold  by  the  city  of  Newark, 
to  enforce  an  unpaid  assessment  made  against  it,  for  a  term  of 
50  years  from  the  16th  day  of  March,  1871,  and  that  a  legal  title 
was  subsetjuently  made  to  the  purchaser  in  execution  of  the  sale, 
and  that  he  (defendant)  became  invested  with  such  title  on  the 
15th  of  July,  1878,  and  thereby  acquired  a  right  to  the  possession 
and  use  of  this  part  of  the  property  in  controversy  superior  to 
any  which  the  complainant  can  claim.  The  defendant  has  also 
made  these  facts  the  basis  of  a  cross-bill,  in  which  he  asks  a 
decree  declaring  that  the  complainant  holds  the  legal  title  to 
the  lands  in  question  in  trust  for  him,  and  directing  her  to  con- 
vey them  to  him. 

This  cross-bill  is  the  subject  of  the  present  controversy.  The 
complainant  moves  to  strike  it  out  both  on  the  ground  that  it  is 
useless  and  impertinent;  useless,  because,  as  her  counsel  con- 
tends, if  the  facts  stated  in  the  cross-bill  were  set  up  in  the  an- 
swer alone,  and  proved,  they  would  constitute,  under  the  answer, 
as  complete  and  perfect  a  defence  to  the  case  made  by  the  bill  as 
can  be  made;  impertinent,  because  the  cross-bill  seeks  to  thrust 
into  the  case  a  question  entirely  foreign  to  the  matter  put  in 
litigation  by  the  original  bill. 

There  can  be  no  doubt,  I  think,  that  a  cross-bill  which  merely 
sets  up  matter  which  the  defendant  may  make  equally  available 
and  effectual  as  a  defence  by  answer,  is  demurrable ;  for  in  such 
case  the  cross-bill  is  not  only  unnecessary,  but  useless.  The  only 
purpose  it  could  serve  in  such  case  would  be  to  incumber  the  rec- 
ord, and  add  to  the  expense  of  litigation.  And  it  is  also  well 
settled  that  a  defendant  can  only  use  a  cross-bill  against  a  com- 
plainant as  a  means  of  defence.  It  must,  therefore,  be  confined 
to  the  matter  put  in  litigation  by  the  original  bill,  and  cannot  be 
used  by  a  defendant  as  a  means  of  obtaining  relief  against  a  com- 
plainant in  respect  to  a  cause  of  action  distinct  from  and  wholly 
unconnected  with  the  complainant's  cause  of  action.    Carpenter 


Sec.  3.]  beck  v.  beck.  69'^ 

V.  Gray,  37  N.  J.  Eq.,  389 ;  Kirkpatrick  v.  Corning,  39  N.  J.  Eq., 
136;  Krueger  v.  Ferry,  41  N.  J.  Eq.,  432  (5  Atl.  Rep.,  452).  The 
question  presented  for  judgment  must  be  decided  by  these  rules. 
So  far  as  the  defendant's  defence  rests  on  a  legal  title,  it  would 
seem  to  be  entirely  clear  that  he  does  not  need  the  aid  of  a  cross- 
bill, but  that  he  may  make  it  fully  and  effectually  under  his 
answer.  The  gravamen  of  the  complainant's  ca.se  is  that  the  de- 
fendant has,  as  her  agent,  received  the  rents  of  certain  real  estate 
which  she  holds  for  her  own  use,  and  refused  to  pay  them  to  her. 
The  defendant  denies  the  principal  fact  upon  which  this  claim 
rests.  He  says  that  the  complainant  does  not  hold  the  legal  title 
to  a  part  of  the  real  estate  of  which  she  claims  the  rent,  but  that 
he  does.  If  he  establishes  this  fact,  he  will  show  as  perfect  and 
as  complete  a  defence  as  can  be  shown,  and  a  decree  of  dismissal 
denying  that  the  complainant  is  entitled  to  these  rents  will  render 
his  defence,  both  in  point  of  protection  and  prevention,  as  ade- 
quate and  efficacious  as  can  be. 

The  other  branch  of  the  defence  stands,  howevei-,  in  a  very  dif- 
ferent position,  and  is  subject  to  entirely  different  rules.     The 
deeds  under  which  the  complainant  claims  the  rents  in  contro- 
versy show  on  their  face  that  she  is  the  absolute  owner,  for  her 
own  use,  of  the  lands  from  which  the  rents  were  derived.     So 
long  as  the  deeds  stand  in  their  original  form,  the  complainant's 
title  to  the  rents  must  be  regarded  as  perfect.    The  defendant 
seeks  to  change  the  form  of  the  deeds,  or  at  least  their  effect.    They 
are  now  ab.solute,  investing  the  complainant  with  a  perfect  legal 
title  to  the  lands  for  her  o\\ti  use.   The  defendant  seeks  to  fasten 
a  trust  upon  the  complainant's  title.    This  can  only  be  done  by 
the  decree  of  this  court,  and  until  this  court  has  declared,  by  its 
decree,  that  the  complainant's  title  is  subject  to  a  trust,  the  deeds 
must  be  construed  and  enforced,  here  and  elsewhere,  according 
to  their  plain  terms.    No  such  decree  can  be  made  except  upon  a 
bill,  either  original  or  cross.     Parol  evidence  is  admissible  forW 
the'purpose  of  establishing  a  resulting  trust,  but  not  for  the  pur-| 
pose  of  contradicting  the  terms  of  a  valid  written  contract.     If 
evidence  of  this  kind  should  be  offered  and  received  in  this  case, 
under  an  answer  alone,  the  only  office  it  could  perform  would  be 
to  contradict  the  terms  of  the  deeds ;  for,  in  this  condition  of  the 
pleadings,  the  court  would  be  powerless,  even  if  such  should  be 
shown  to  be  the  fact,  to  fasten  a  trust  on  the  complainant's  title. 
So  that  the  only  purpose  the  admission  of  such  evidence  could 


698  THE   ANSWER.  [ClIAl*.  IV. 

serve,  if  the  cross-bill  is  suppressed,  would  bo  to  contradict  the 
terms  of  the  deeds.    But  with  the  cross-bill  constituting?  pan  of 
the  record  in  the  case,  such  evidence  could  be  properly  received, 
not  for  the  purposes  of  contradiction,  but  to  lay  the  foundation 
for  effecting  a  change,  by  judicial  means,  in  the  complainant's 
title — by  making  her  title,  which  is  now  free  and  unclogged,  sub- 
ject to  a  trust.    The  case  must,  in  my  judgment,  be  ruled  by  the| 
principles  which  govern  the  reformation  of  written  contracts,  i 
In  the  absence  of  fraud,  a  defendant  cannot  show,  under  an  I 
answer  alone,  that  a  contract  which  is  perfect  and  complete  in 
all  its  parts  differs,  in  a  material  respect,  from  the  contract  which! 
he  made ;  but  if  he  desires  to  show  that  such  is  the  fact,  he  mustj 
ask  by  cross-bill  to  have  the  contract  reformed.    Van  Syckel  v. 
Dalrymple,  32  N.  J.  Eq.,  233,  S.  C.  on  appeal,  Id.  826.     *     *     * 
The  complainant's  motion  must,  therefore,  be  denied. 


DOBSOX  V.  PEARCE. 

12  N.  Y.,  156.     [1854.] 


/ 


The  action  was  commenced  in  New  York  Superior  Court  on  the 
26th  of  September,  1850.  The  complaint  was  on  a  judgment  for 
$612.93,  recovered  in  that  court  in  April,  1846,  in  favor  of  one 
Olney  against  Pearce,  the  defendant  in  this  suit,  alleging  an  as- 
signment thereof  from  Olney  to  Dobson,  the  plaintiff,  just 
previous  to  the  commencement  of  the  action. 

The  defendant  by  his  answer  alleged  that  the  judgment  was 
entered  in  a  suit  commenced  against  him^  in  favor  of  Olney,  by 
the  service  of  a  capias  upon  him  in  February,  1846,  when  he  was 
casually  in  New  York,  he  then  and  even  after  being  a  resident  of 
Connecticut ;  that  Olney  had  no  just  or  legal  demand  against  him 
when  the  capias  was  served  and  that  he  was  induced  by  fraudu- 
lent representations  and  assurances  of  Olney,  made  to  him  after 
the  capias  was  served,  and  upon  which  he  relied,  to  the  effect 
that  no  further  proceedings  would  be  taken  in  the  suit,  not  to 
appear  therein;  and  that  afterwards  Olney  fraudulently  and 
without  the  knowledge  of  the  defendant  procured  the  judgment 
mentioned  in  the  complaint  to  be  entered  in  the  suit  upon  a  false 
and  unfounded  claim,  and  known  so  to  be  by  Olney  at  the  time ; 
that  in  1848  Olney  commenced  an  action  of  debt  on  the  judgment 


Sec.  3.]  dobson  v.  pearce.  699 

against  the  defendant,  in  the  superior  court  of  the  State  of  Con- 
necticut. Thereupon,  the  defendant  commenced  a  suit  in  chan- 
cery against  Olney,  before  the  same  court  in  Connecticut,  alleging 
that  the  judgment  was  procured  to  be  entered  by  fraud  on  the 
part  of  Olney,  and  praying  the  court  to  perpetually  enjoin  him 
from  further  prosecuting  it.  Olney  appeared  in  and  defended 
the  chancery  suit  by  attorney;  and  on  the  10th  of  September, 
1850,  a  decree  was  made  therein,  declaring  the  judgment  fraudu- 
lent and  perpetually  enjoining  Olney  from  further  prosecuting 
the  action  upon  it;  that  in  submission  to  this  decree,  the  action 
upon  the  judgment  in  the  superior  court  of  Connecticut  was  dis- 
continued; and  that  the  pretended  assignment  to  the  plaintiff 
was  made  after  the  decree  and  with  full  knowledge  of  it  and  of 
the  fraud  in  procuring  the  judgment.  The  plaintiff  replied, 
denying  the  allegations  in  the  answer. 

The  suit  was  tried  first  in  1851,  when  a  verdict  was  rendered  in 
favor  of  the  plaintiff ;  this  was  set  aside  and  a  new  trial  ordered. 
(See  1  Duer,  142.)  On  a  second  trial,  in  1853,  the  court  directed 
the  complaint  to  be  dismissed ;  this  was  set  aside  and  a  third  trial 
ordered.  The  third  trial  was  had  before  Justice  Duer  and  a  jury, 
in  1853.  On  this  trial  the  plaintiff  proved  the  judgment  de- 
scribed in  the  complaint,  and  thi-  a.ssignment  thereof  by  Olney  to 
the  plaintiff",  on  the  11th  of  September,  1850,  and  rested. 

The  defendant  offered  in  evidence  a  duly  authenticated  copy 
of  the  record  of  the  proceedings  in  the  suit  in  chancery  in  the 
superior  court  of  Connecticut,  mentioned  in  the  answer.  The 
counsel  for  the  plaintiff'  objected  to  it  as  evidence ;  the  objection 
was  overruled  and  the  same  received  and  read  in  evidence,  and 
plaintiff' 's  counsel  excepted.  From  this  record  it  appeared  that 
Pearce  commenced  suit  in  chancery  against  Olney  in  the  superior 
court  of  Connecticut,  in  1849,  and  in  the  bill  or  petition  for  relief 
he  stated  the  entry  of  the  judgment  against  him  in  the  superior 
court  of  New  York,  and  alleged  that  there  was  no  just  or  legal 
demand  against  him  in  the  suit  in  which  it  was  entered ;  that  he 
was  prevented  from  appearing  in  that  suit  by  the  fraudulent  rep- 
resentations and  assurances  of  Olnej',  detailing  them,  and  that  the 
judgment  was  procured  to  be  entered  by  fraud  on  the  part  of 
Olney ;  that  Olney  had  commenced  an  action  of  debt  against  him 
on  the  judgment  in  the  superior  court  of  Connecticut,  which  was 
pending;  and  prayed  relief.  Olney  appeared  in  and  defended 
the  chancery  suit  by  George  Perkins,  Esq.,  an  attorney.    It  was 


700  THE  ANSWER.  [Cu.VP.  IV. 

referred  to  a  committee  to  hear  the  evidence  and  report  the  Tacts. 
At  the  March  term  of  the  court,  in  1850,  the  cause  was  heard  on 
the  report  of  the  committee  and  objections  made  thereto  by  the 
counsel  for  Olney,  and  thereupon  at  that  term,  the  court  found, 
from  the  facts  stated  in  the  report  of  the  committee,  that  the 
material  allegations  in  the  bill  were  true;  and  afterwards,  at  a 
term  of  the  court  held  on  the  second  Tuesday  of  September,  1850, 
a  decree  was  made  by  which  the  material  facts  stated  in  the  bill 
were  declared  to  be  true,  and  Olney  was  enjoined  from  prosecut- 
ing his  action  of  debt  upon  the  judgment  under  a  penalty  of  one 
thousand  dollars,  and  adjudged  to  pay  the  costs  of  the  chancery 
suit. 

The  counsel  for  the  defendant  read  in  evidence  a  duly  authenti- 
cated copy  of  the  record  of  the  proceedings  in  the  action  of  debt 
on  the  judgment  rendered  in  the  New  York  Superior  Court,  com- 
menced by  Olney  in  the  Superior  Court  of  Connecticut.  To  the 
admission  of  this  record  in  evidence,  the  counsel  for  the  plaintiff 
duly  objected;  the  objection  was  overruled  and  he  excepted.  By 
this  record  it  appeared  that  the  action  was  commenced  in  Novem- 
ber, 1848,  and  prosecuted  by  George  Perkins,  Esq.,  as  attorney 
for  Olney;  that  Pearce  appeared  therein,  and  that  on  the  8th  of 
April,  1850,  the  suit  was  discontinu(>d  with  the  leave  of  the  court. 
The  counsel  for  the  defendant  further  proved  that  the  judgment 
mentioned  in  the  records  of  the  proceedings  in  the  suit  at  law, 
and  the  chancery  suit  prosecuted  in  the  Superior  Court  of  Con- 
necticut, was  the  same  judgment  mentioned  in  the  complaint 
herein ;  and  that  the  suit  at  law  was  discontinued  after  the  com- 
mittee appointed  in  the  chancery  suit  had  reported  the  facts  to 
the  court  and  notice  thereof  had  been  served  on  the  attorney  of 
Olney.  It  was  further  proved  that  the  assignment  of  the  judg- 
ment to  this  plaintiff  was  after  the  final  decree  in  the  chancery 
suit  had  been  made,  and  after  notice  of  it  to  Olney  and  the  plain- 
tiff. The  justice  before  whom  the  cause  was  tried  instructed  the 
jury  that  the  record  of  the  proceedings,  finding  and  decree  of  the 
Superior  Court  of  Connecticut  in  the  chancery  suit,  was  con- 
clusive evidence  against  the  plaintiff  to  sustain  the  allegations  in 
the  defendant's  answer,  if  the  jury  found  that  Olney  appeared  in 
that  suit  by  an  attorney  who  was  authorized  by  him  to  do  so; 
that  if  the  jury  did  not  so  find,  then  this  record  did  not  affect 
the  plaintiff.  The  counsel  for  the  plaintiff  excepted  to  such  in- 
structions.   The  jury  rendered  a  verdict  in  favor  of  the  defend- 


Sec.  3.]  dobson  v.  pearce.  701 

ant.  The  juclffmont  rcnck'ivd  on  this  vordict  was  afiTirmed  at  a 
general  term  of  the  Superior  Court.  The  plaintifY  appealed  to 
this  court. 

W.  F.  Allen,  J. :  A  judgment  rendered  by  a  court  of  com- 
petent jurisdiction  cannot  be  impeached  collaterally  for  error  or 
irregularity,  but  is  conclusive  until  set  aside  or  reversed  by  the 
same  court  or  some  other  court  having  appellate  jurisdiction. 
(Smith  V.  Lewis,  3  J.  R.,  157;  Homer  v.  Field,  1  Pick.,  435.) 
The  jurisdiction  of  the  court  in  which  a  judgment  has  been  re- 
covered is,  however,  always  open  to  injury;  and  if  it  has  ex- 
ceeded its  jurisdiction,  or  has  not  acquired  jurisdiction  of  the 
parties  by  the  due  service  of  process  or  by  voluntary  appearance, 
the  proceedings  are  coram  non  jiidice  and  the  judgment  void. 
The  want  of  jurisdiction  has  always  been  held  to  be  a  valid 
defence  to  an  action  upon  a  judgment,  and  a  good  answer  to  it 
when  set  up  for  any  purpose. 

So  fraud  and  imposition  invalidate  a  judgment,  as  they  do 
all  acts;  and  it  is  not  without  semblance  of  authority  that  it  has 
been  suggested  that  at  law  the  fraud  may  be  alleged,  whenever 
the  party  seeks  to  avail  himself  of  the  result  of  his  own  fraudu- 
lent conduct  by  setting  up  the  judgment,  the  fruits  of  his  fraud. 
(See  per  Thompson,  C.  J.,  in  Borden  v.  Fitch,  15  J.  R.,  121,  and 
cases  cited.)  But  whether  this  be  so  or  not,  it  is  unquestionable 
that  a  court  of  chancery  has  power  to  grant  relief  against  judg- 
ments when  obtained  by  fraud.  Any  fact  which  clearly  proves 
it  to  be  against  conscience  to  execute  a  judgment,  and  of  which 
the  injured  party  could  not  avail  himself  at  law,  but  was  pre- 
vented by  fraud  or  accident,  unmixed  with  any  fault  or  negli- 
gence in  himself  or  his  agents,  will  justify  an  interference  by  a 
court  of  equity.  (Reigal  v.  Wood,  1  J.  C.  11.,  402;  McDonald 
V.  Neilson,  2  Cow.  Rep.,  139 ;  Duncan  v.  Lyon,  3  J.  C.  R.,  351 ; 
Marine  Ins.  Co.  of  Alexandria  v.  Hodgson,  6  Cranch,  206 ;  Shot- 
tenkirk  v.  Wheeler,  3  J.  C.  R.,  275.) 

Under  our  present  judiciary  systems,  the  functions  of  the 
courts  of  common  law  and  of  chancery  are  united  in  the  same 
court,  and  the  distinctions  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  and  suits  are  abolished, 
and  the  defendant  may  set  forth  by  answer  as  many  defences  as 
he  may  have,  whether  they  be  such  as  have  been  heretofore  de- 
nominated legal  or  equitable,  or  both.  (Code  §§69,  150.)  The 
Code  also  authorizes  affirmative  relief  to  be  given  to  a  defendant 


702  THE  ANSWER.  [ChaP.  IV. 

in  an  action  by  the  judgment.  (§  274.)  The  intent  of  the  le.i:i>= 
lature  is  very  clear,  that  all  controversies  respectinj?  the  subject 
matter  of  the  litigation  should  be  determined  in  one  action,  and 
the  provisions  are  adapted  to  give  effect  to  that  intent.  Whether 
therefore,  fraud  or  imposition  in  the  recovery  of  a  judgment 
could  heretofore  have  been  alleged  against  it  collaterally  at  law 
or  not,  it  may  now  be  set  up  as  an  equitable  defence  to  defeat  a 
recovery  upon  it.  Under  the  head  of  equitable  defences  are  in- 
cluded all  matters  which  would  before  have  authorized  an  appli- 
cation to  the  court  of  chancery  for  relief  against  a  legal  liability, 
but  which,  at  law,  could  not  have  been  pleaded  in  bar.  The  facts 
alleged  by  way  of  defence  in  this  action  would  luive  been  good 
cause  for  relief  against  the  judgment  in  a  court  of  chancery,  and 
■under  our  present  system  are,  therfore,  proper  matters  of  de- 
fence ;  and  there  was  no  necessity  or  propriety  for  a  resort  to  a 
separate  action  to  vacate  the  judgment.  In  Connecticut,  al- 
though law  and  equity  are  administered  by  the  same  judges, 
still  the  distinction  between  these  systems  is  preserved,  and  jus- 
tice is  administered  under  the  head  of  common  law  and  chancery 
jurisdiction  by  distinct  and  appropriate  forms  of  procedure; 
and  hence,  as  it  was  at  least  doubtful  whether  at  law  the  fraud 
alleged  would  bar  a  recovery  upon  the  judgment,  a  resort  to  the 
chancery  powers  of  the  court  of  that  state  was  proper,  if  not 
necessary. 

The  right  of  the  plaintiff  in  the  judgment  was  a  personal 
right  and  followed  his  person;  and,  aside  from  the  fact  that  he 
had  resorted  to  the  courts  of  Connecticut  to  enforce  his  claim 
under  the  judgment,  the  courts  of  that  state,  having  obtained 
jurisdiction  of  his  person  by  the  due  service  of  process  within 
the  state,  had  full  power  to  pronounce  upon  the  rights  of  the 
parties  in  respect  to  the  judgment  and  to  decree  concerning  it. 
It  necessarily  follows  that  the  decree  of  the  Superior  Court  of 
Connecticut,  sitting  as  a  court  of  chancery,  directly  upon  the 
question  of  fraud,  is  conclusive  upon  the  parties  to  that  litiga- 
tion, and  all  persons  claiming  under  them  with  notice  of  the  ad- 
judication. The  judgment  of  a  court  of  competent  jurisdiction 
upon  a  point  litigated  between  the  parties,  is  conclusive  in  all 
subsequent  controversies  where  the  same  point  comes  again  in 
question  between  the  same  parties.  (White  v.  CoatsAvorth,  2 
Seld.,  137;  Embury  v.  Conner,  3  Comst.,  522.)  In  the  State  of 
Connecticut  it  is  quite  clear  the  question  of  fraud  would  not  be 


Sec.  3.]  dobson  v.  pearce.  703 

an  open  question  between  the  parties,  but  would  be  considered 
entirely  settled  by  the  decree  of  the  court  of  that  state;  and  as 
full  faith  and  credit  are  to  be  given  by  each  state  to  the  judicial 
proceedings  of  every  other  state,  that  is,  the  same  credit,  validity 
and  effect  as  they  would  have  in  the  state  in  which  they  were  had, 
the  parties  are  concluded  in  the  courts  of  this  state  by  the  judg- 
ment of  the  court  in  Connecticut  directly  upon  the  question  in 
issue.  (Hampton  v.  McConnel,  3  Wheat.,  234.)  The  decree  of 
the  court  of  chancery  of  the  State  of  Connecticut  as  an  operative 
decree,  so  far  as  it  enjoined  and  restrained  the  parties,  had  and 
has  no  extra-territorial  efficacy,  as  an  injunction  does  not  affect 
the  courts  of  this  state ;  but  the  judgment  of  the  court  upon  the 
matters  litigated  is  conclusive  upon  the  parties  everywhere,  and 
in  every  forum  where  the  same  matters  are  drawn  in  question. 
It  is  not  the  particular  relief  which  was  granted  which  affects 
the  parties  litigating  in  the  courts  of  this  state ;  but  it  is  the  ad- 
judication and  determination  of  facts  by  that  court,  the  final 
decision  that  judgment  was  procured  by  fraud,  which  is  oper- 
ative here  and  necessarily  prevents  the  plaintiff  from  asserting 
any  claim  under  it.  The  court  acquired  jurisdiction  of  the 
parties  by  the  commencement  of  the  action,  and  the  service  of 
the  process  upon  the  defendant  therein,  and  his  appearance  by 
an  unauthorized  attorney;  and  the  withdrawal  of  the  action  of 
debt  upon  the  judgment  did  not  deprive  it  of  jurisdiction  thus 
acquired. 

The  judgment  of  the  superior  court  must  be  affirmed,  with 
costs. 

Johnson,  J. :  The  questions  in  this  cause  arise  upon  two  ex- 
ceptions taken  at  the  trial.  The  first  was  taken  to  the  decision 
admitting  in  evidence  the  record  of  a  decree  in  equity,  made  by 
the  superior  court  of  judicature  of  the  State  of  Connecticut,  be- 
tween the  defendant  in  this  suit  and  one  Olney,  the  immediate 
assignor  to  the  plaintiff  of  the  judgment  now  sued  upon.  The 
second  was  to  the  instruction  of  the  court  to  the  jury,  that  the 
record  of  the  proceedings,  finding  and  decree  aforesaid,  given 
in  evidence  by  the  defendant  to  support  the  allegations  in  his 
answer,  was,  for  the  purposes  of  this  suit,  conclusive  evidence 
upon  the  plaintiff,  if  the  jury  found  that  Olney  appeared  in  that 
cause  by  his  authorized  attorney. 

The  plaintiff  is  in  the  same  position  which  Olney  would  have 
occupied  had  he  been  plaintiff;  he  is  the  immediate  assignee  of 


704  THE  ANSWER.  [ClIAP.  IV. 

Olney,  against  whom,  before  the  assi-iiimeiit,  the  decree  was  pro- 
nounced; and  if  it  be  material,  he  had  actual  notice  of  the  decree 
when  the  assignment  was  made  to  him.  Giving  to  the  plaintiff's 
objection  to  the  admission  of  the  record  the  broadest  effect,  the 
first  question  is  whether  the  defence  set  up  by  the  answer  was 
available.  That  defence  is,  in  substance,  that  the  judgment  sued 
upon  was  fraudulently  entered  up  after  assurances  on  behalf  of 
the  plaintiff  in  that  suit  to  the  defendant,  that  no  further  pro- 
ceedings should  be  taken  in  it  without  notice  to  him,  whereby  he 
was  induced  not  to  take  steps  to  interpose  a  defence  which,  in 
point  of  fact,  he  could  successfully  have  maintained. 

Relief  against  such  a  judgment,  upon  these  facts,  would  have 
been  within  the  power  of  a  court  of  equity  in  this  state,  upon  a 
bill  filed  for  that  purpose.  (2  Story's  Eq.  Jur.,  §§  887,  896; 
Huggins  V.  King,  3  Barb.,  616.)  The  Code,  §69,  having  abol- 
ished the  distinction  between  the  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  theretofore  existing,  an 
equitable  defence  to  a  civil  action  is  now  as  available  as  a  legal 
defence.  The  question  now  is,  ought  the  plaintiff  to  recover; 
and  anything  which  shows  that  he  ought  not  is  available  to  the 
defendant,  whether  it  was  formerly  of  equitable  or  legal  cog- 
nizance. The  next  question  is  whether  the  record  of  the  decree 
of  the  Superior  Court  of  Connecticut  was  competent  evidence 
upon  that  issue.  Olney  actually  appeared  by  his  attorney  in 
that  suit  and  was  heard  upon  its  merits.  He  was,  therefore,  be- 
fore that  court,  and  it  had  jurisdiction  of  his  person  if  it  had 
jurisdiction  of  the  subject  matter  of  the  suit.  The  object  of  the 
suit  was  to  restrain  Olney  from  prosecuting  a  suit  at  law  in  the 
same  court  upon  the  judgment  in  suit  here,  and  the  grounds  upon 
which  that  relief  was  sought  were  the  same  which  were  set  up  as 
a  defence  here.  The  jurisdiction  to  restrain  suits  at  law  being 
one  of  the  firmly  established  parts  of  the  authority  of  courts  of 
equity,  and  the  plaintiff,  in  the  suit  which  was  enjoined,  having 
undertaken  to  prosecute  that  suit  in  a  court  of  law  of  the  State 
of  Connecticut,  the  only  conceivable  grounds  for  denying  the 
equitable  jurisdiction  which  was  exercised  in  the  case  are,  either 
that  no  court  of  equity  anywhere  has  power  to  restrain  a  suit 
upon  a  judgment  at  law  upon  such  grounds,  or  that  a  court  of 
equity  in  one  state  has  no  jurisdiction  to  restrain  such  a  suit 
upon  a  judgment  of  a  court  of  law  of  another  state.  The  first 
of  these  grounds  has  already  been  considered  and  found  un- 


Sec.  3.j  dobson  v.  pe.irce.  705 

sound.  The  other  rests  either  upon  some  ground  of  comity  be- 
tween the  states,  or  upon  the  force  of  the  constitution  and  laws 
of  the  United  States.  The  objection,  so  far  as  it  is  founded  upon 
an  assumed  violation  of  the  comity  which  exists  between  the 
several  states  of  the  United  States,  does  not  reach  to  the  jurisdic- 
tion of  the  court.  The  rules  of  comity  may  be  a  restraint  upon 
a  court  in  the  exercise  of  an  authority  which  it  actually  possesses, 
but  it  is  self-imposed.  (Bank  of  Augusta  v.  Earle,  13  Pet.,  519.) 
The  courts  of  each  state  must  judge  for  themselves  exclusively 
how  far  they  will  be  restrained,  and  in  what  cases  they  will  exer- 
cise their  power,  except  where  the  constitution  of  the  United 
States  and  the  laws  made  in  pursuance  of  it  prescribe  a  rule. 
Where  that  is  the  case,  the  question  ceases  to  be  one  of  comity  and 
becomes  one  of  right. 

The  question  then  remains  to  be  considered  upon  the  constitu- 
tion and  laws  of  the  United  States,  and  here  the  decisions  permit 
of  no  doubt.  Full  faith  and  credit  are  given  to  the  judgments  of 
a  state  court,  when  in  the  courts  of  another  state  it  receives  the 
same  faith  and  credit  to  which  it  was  entitled  in  the  state  where 
it  was  pronounced.     (Hampton  v.  McConnell,  3  Wheat.,  234.) 

We  have  then  a  decree  of  the  Superior  Court  of  Connecticut 
in  a  cause  where  they  had  jurisdiction  of  the  svibject  matter  and 
of  the  parties,  and  it  is  duly  authenticated  and  relevant  to  the 
issue  on  trial.    Its  admissibility  in  evidence  follows,  of  course. 

By  the  record  of  that  decree  it  appears  that  the  very  matters 
in  issue  here  were  litigated  there,  and  were  decided  adversely  to 
Olney,  whom  the  plaintiff  represents.  The  determination  is 
necessarily  conclusive  upon  him  as  to  all  the  material  facts  there 
litigated  and  determined.  The  judgment  should  be  affirmed  with 
costs. 

Judgment  accordingly. 


HANCOCK  v.  BLACKWELL. 

139  Mo.,  440.   [1897.] 

Action  at  law  for  slander,  to  which  defendant  pleaded  a  re- 
lease. The  plaintiff  filed  a  reply,  alleging  that  she  had  been  in- 
duced to  execute  the  release  by  means  of  certain  false  and  frau- 
dulent representations  on  the  part  of  the  defendant.  The  court 
overruled  the  defendant 's  motion  to  strike  out  these  allegations  of 
45 


706  THE    ANSWER.  [ClIAP.  IV. 

the  reply,  and  submitted  the  whole  case  to  the  jury,  which  re- 
turned a  verdict  for  the  plaintiff.    The  defendant  appealed.* 

Burgess,  J. :  *  *  *  2.  The  next  question  is  with  respect 
to  the  action  of  the  court  in  overruling  defendant's  motion  to 
strike  out  that  part  of  plaintiff's  reply  to  defendant's  answer,  in 
which  it  is  averred  that  the  release  set  up  in  the  answer  was  ob- 
tained by  fraud,  and  fraudulent  representations.  It  may  be 
conceded  that  when  a  contract  has  been  obtained  from  a  person 
incompetent  to  contract  or  from  a  competent  person  by  misread- 
ing, the  surreptitious  substitution  of  one  paper  for  another,  or 
has  been  obtained  by  some  other  trick  or  device  an  instrument 
which  he  did  not  intend  to  give,  or  where  no  consideration  has 
passed  for  the  release,  that  such  fraud  or  want  of  consideration 
may  be  shown  in  a  proceeding  at  law;  so  that  the  authorities 
bearing  upon  that  class  of  cases  need  not  be  further  noticed  in 
passing  upon  the  question  involved  in  this  case.  The  plaintiff 
admits  that  she  signed  the  release,  knowing  at  the  time  what 
it  was,  its  purpose  and  effect,  but  seeks  to  avoid  its  legal  effect 
as  a  bar  to  this  action  upon  the  ground  that  she  was  induced  to 
execute  it  by  fraudulent  representations,  and  undue  influence. 
When  the  release  was  executed  by  plaintiff  it  was,  to  all  intents 
and  purposes,  a  bar  to  this  action  until  set  aside  in  a  direct  pro- 
ceeding in  equity  for  that  purpose,  in  which  event  the  money 
received  in  consideration  for  the  release  must  be  tendered  back 
and  the  defendant  put  in  statu  quo.  The  rule  is  thus  announced 
in  Cleary  v.  Electric  Light  Co.,  19  N.  Y.  Supp.,  951.  "The  rule 
undoubtedly  is,  that  where  a  party  seeks  to  rescind  the  contract 
on  the  ground  of  fraud  or  imposition,  he  must  tender  a  return 
of  what  he  has  received  under  it  before  he  can  maintain  an  action 
at  law ;  and,  in  an  action  in  equity,  he  must  at  least  tender  a  re- 
turn by  his  bill  of  complaint."  The  same  rule  is  announced  in 
Insurance  Company  v.  Howard,  111  Ind.,  544;  Gould  v.  Bank,  86 
N.  Y.,  75 ;  McMichael  v.  Kilmer,  76  N.  Y.,  36 ;  Ryan  v.  Ward,  48 
N.  Y.  204 ;  Coon  v.  Knap,  8  N.  Y.,  402.  So  in  Vandevelden  v. 
Railroad,  61  Fed.  Rep.,  54,  it  was  said:  "In  an  action  at  law 
for  personal  injuries,  a  release  intentionally  executed  by  plain- 
tiff for  a  money  consideration,  knowing  the  legal  effect  thereof, 
can  not  be  attacked,  or  its  effect  as  a  complete  bar  avoided,  by 
showing  that  plaintiff  was  induced  to  sign  it  by  the  misrepresen- 
tation of  defendant's  surgeon,  who  attended  him,  as  to  the  per- 

*The  statement  has  been  condensed. 


Sec.  3.]  haxcock  v.  blackwell.  707 

manent  character  of  his  injuries.  The  action,  however,  may  be 
suspended  while  plaintiff  brings  an  independent  suit  in  equity  to 
rescind  the  release  for  fraud."  In  George  v.  Tate,  102  U.  S., 
564,  it  was  held  that  the  remedy  under  such  circumstances  is  by 
a  direct  proceeding  to  avoid  the  instrument.  See  also  Stuart  v. 
Eector,  1  Mo.,  361 ;  Mitchell  v.  Parker,  25  ^Mo.,  31 ;  Kearney  v. 
Vaughan,  50  Mo.,  284;  Och  v.  Railroad,  130  Mo.,  27;  Homuth  v. 
R.  R.,  129  Mo.,  629.  In  such  circumstances  the  issue  of  fraud 
should  be  tried  by  the  court ;  and  the  evidence,  in  order  to  justify 
the  setting  aside  of  the  release,  should  be  clear  and  satisfactory, 
"such  as  will  preponderate  over  presumption  or  evidence  on  the 
other  side."  (1  Bigelow  on  the  Law  of  Frauds,  p.  123.)  By 
proceeding  this  way  the  burden  of  proof  rests  un  the  plaintiff 
to  establish  the  fraud  by  clear  and  satisfactory  evidence,  while 
in  trying  such  an  issue  before  a  jury  a  preponderance  of  evi- 
dence is  only  required  to  set  aside  the  release.  The  plaintiff 
should  not,  under  the  circumstances,  be  permitted  to  ignore  the 
release,  and  prosecute  her  action  at  law  without  first  having 
the  release  set  aside  by  a  proceeding  in  equity  for  that  purpose, 
either  by  original  bill,  or,  as  the  offer  to  refund  the  money  wa3 
made  before  the  commencement  of  the  suit,  by  amending  the 
petition  so  as  to  embrace  a  count  for  that  purpose.  (Blair  v. 
Railroad,  89  Mo.,  383 ;  Och  v.  Railroad,  supra ;  Homuth  v.  Rail- 
road, supra.) 

3.  There  was  evidence  tending  to  show  that  the  release  was 
obtained  by  fraud,  and  there  is  nothing  disclosed  by  the  record 
which  will  preclude  plaintiff  from  proceeding  in  equity  to  set 
it  aside  should  the  evidence  be  found  to  be  sufficient  by  the  court 
upon  the  trial  of  that  issue.     »     *     • 

Reversed  and  remanded* 

*Mo.  R.  S.  1899,  sec.  654.  Plaintiff  in  reply  may  allege  fraud  in 
ol)taining  release  set  up  in  answer — issues,  verdict,  etc. 

Whenever  a  release,  composition,  settlement  or  other  discharge  of 
the  cause  of  action  sued  on  shall  be  set  up  or  pleaded  in  the  answer 
in  bar  of  plaintiff's  cause  of  action  sued  on,  it  shall  be  permissible  in 
the  reply  to  allege  any  facts  showing  or  tending  to  show  that  said 
release,  composition,  settlement  or  other  discharge  was  fraudulently 
or  wrongfully  procured  from  the  plaintiff,  and  the  issue  or  issues  thus 
raised  shall  be  submitted  with  all  the  other  issues  in  the  case  to  the 
jury,  and  a  general  verdict  or  finding  upon  all  the  issues,  including 
the  issue  or  issues  of  fraud  so  raised,  shall  be  sufficient.  (New  sec- 
tion.) 


708  TUE    ANSWER.  [CUAi'.  IV. 

CONGER  V.  PARKER.  / 

29  Intl.,  380.     [1868.] 

Frazer,  J. :  The  complaint  alleges  a  conveyance  by  a  deed, 
with  the  usual  covenants,  of  a  certain  tract  of  land  by  the  de- 
fendant to  the  plaintiff;  that  at  the  time  of  the  conveyance  there 
were  upon  the  laud  growing  crops,  to-wit :  wheat  of  the  value  of 
$300;  apples  of  the  value  of  $50;  clover  of  the  value  of  $100; 
and  rails  for  the  use  of  the  farm  and  in  fences,  all  of  wliich  the 
defendant  took  and  converted  to  his  own  use.  To  this  the  de- 
fendant answered,  as  a  defence  to  the  whole  action,  that  by  the 
contract  actually  made,  and  intended  by  the  parties  to  be  em- 
bodied in  the  deed,  the  wheat  was  reserved  to  the  defendant,  but 
by  mistake  of  the  conveyance,  the  reservation  thereof  was  omittd, 
and  not  inserted  in  the  deed.  A  demurrer  to  this  answer,  for  the 
want  of  sufficient  facts,  was  overruled,  and  this  presents  the  only 
question  before  us  needing  particular  notice. 

The  answer  was  clearly  bad.    It  professed  to  answer  the  whole 
complaint,  and  yet,  at  best,  it  only  answered  a  part.    As  to  the 
clover,  apples,  fences,  and  rails,  it  was  wholly  silent  in  every- 
thing that  would  even  tend  to  preclude  a  recovery  therefor.    But 
the  answer  is  bad  for  another  reason.    When  a  mistake  in  a  deed^ 
or  written  instrument   is  relied  upon,  the  pleading  should  go 
further  than  in  this  case  it  did.    It  should  have  prayed  affirma- 
tive relief;  that  the  instrument  be  reformed  so  as  to  show  the 
contract  intended  to  have  been  embodied  in  it,  and  that  when  so  \ 
reformed,  it  might  be  allowed  as  a  bar  to  the  suit,  or  so  much 
thereof  as  it  would  bar.     This  might  be  done  by  answer  in  the 
nature  of  a  cross-bill  in  equity.    It  is  not,  under  the  code,  neces- 
sary to  bring  an  independent  suit  for  the  purpose,  as  it  was  f oi'm-  J 
erly,  when  the  original  suit  was  at  law. 

Rigsbee  v.  Trees,  21  Ind.,  227,  is  not  in  conflict  with  our  pres- 
ent ruling.  That  was  a  suit  to  correct  a  mistake  in  a  promissory 
note  as  to  the  amount  thereof,  and  for  judgment  on  the  note 
when  so  corrected.  The  court  found  the  mistake  as  alleged,  and 
without  first  formerly  correcting  the  note,  rendered  judgment 
for  the  true  amount.  It  was  merely  held  that  the  formal  omis- 
sion was  not  error  available  to  the  defendant  in  that  ease.  *  *  * 


g£(,   3  ]  CONGER  V.   PARKER.  ''0^ 

The  judgment  is  reversed  with  costs,  and  the  cause  remanded, 
with  instructions  to  sustain  the  demurrers  to  the  second  and 
third  paragraphs  of  the  answer. 


KIRK  V.  HAMILTON.  / 

102  U.  S.,  6S.*    [1S80.] 

Error  to  the  Supreme  Court  of  the  District  of  Columbia.  This 
was  an  action  of  ejectment,  brought  December  21,  1872,  by 
George  E.  Kirk,  against  Charles  0.  Hamilton  and  Catherine 
Hamilton,  to  recover  parts  of  lots  7  and  9  in  square  437  in  the 
city  of  Washington.  The  defendants  pleaded  not  guilty.  A  ver- 
dict was  returned  in  their  favor,  and,  a  new  trial  having  been 
refused,  judgment  was  entered  on  the  verdict.     Kirk  sued  out 

this  writ. 

The  plaintiff  claimed  title  as  original  owner.  The  defend- 
ants claimed  title  under  a  trustee's  sale  made  under  a  decree  in 
a  judgment  creditor's  action  against  Kirk  and  others.  The  facts 
sufficiently  appear  in  the  opinion. 

Mr.  Justice  Harlan,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

It  appears  from  the  first  bill  of  exceptions  that,  upon  the  trial 
of  the  cause,  the  plaintiff,  to  maintain  the  issue  joined,  gave  evi- 
dence to  the  jury  tending  to  prove  title  in  himself  to  the  land  in 
dispute,  as  well  as  his  actual  possession  of  the  premises  under 
that  title;  that  he  had  fully  discharged  the  indebtedness  secured 
by  the  two  deeds  of  trust  executed,  one  to  Lenox  and  Naylor,  and 
the  other  to  Clarke  and  Smith ;  that  Charles  Stott,  on  the  14tli 
of  :Mav  1872,  reconveyed  to  him  all  that  portion  of  the  premises 
which,'  on  the  22nd  of  March,  1856,  he  had  conveyed  to  Stott ; 
that  he  had  never  made  nor  authorized  any  other  conveyances 
than  those  just  named.  He  also  introduced  a  deed  from  Carring- 
ton,  as  the  supposed  trustee  in  the  case  of  ^loore  &  Co.  v.  Kirk, 
etc.',  at  the  same  time,  however,  denying  its  validity,  and  avowing 
that  it  was  introduced  subject  to  his  exceptions  reserved,  and  to 
be  thereafter  presented,  as  to  its  sufficiency  in  law  to  prove  title 
in  the  defendants  or  either  of  them.     It  was  admitted  by  the 


♦The  statement  has  been  condensed. 


710  THE    ANSWER,  [CuAP.  IV. 

court  subject  to  these  exceptions.  The  plaintiff  further  gave 
evidence  to  prove  that  defendants  were  in  possession  of  the  prem- 
ises at  the  commencement  of  the  action,  and  then  rested. 

The  bill  of  exceptions  then  shows  that  defendants,  to  sustain 
their  defence,  and  to  prove  title  out  of  the  plaintiff,  offered  to 
read  in  evidence  the  record  of  the  equity  suit  of  Moore  &  Co.  v. 
Kirk,  etc.  Plaintiff  insisted  that  the  record  of  that  suit  was  in- 
sufficient in  law  to  maintain  the  issue  on  the  defendant's  behalf, 
or  to  show  title  in  them,  and  asked  the  court  to  inform  the  jury 
that  it  should  not  then  be  admitted  in  evidence,  except  subject 
to  his  exceptions  as  to  its  sufficiency  in  law,  or  to  be  thereafter 
presented  to  the  court  pending  the  further  trial  of  the  cause. 
The  record  was  so  admitted.  The  defendants,  further  to  main- 
tain their  defence,  and  to  prove  title  in  themselves,  offered  to 
introduce  testimony  tending  to  prove  that,  at  the  time  of  the 
purchase  of  the  premises  at  the  sale  made  by  Carrington,  trustee, 
in  the  suit  of  Moore  &  Co.  v.  Kirk,  etc.,  the  only  improvement 
thereon  was  a  two-story  four-roomed  brick  house,  and  that,  about 
the  year  1868,  the  defendants  erected  an  extensive  building  on 
the  property,  at  a  cost  of  some  $4,000 ;  that  when  they  began  such 
building,  and  for  some  time  thereafter,  the  plaintiff  Kirk  resided 
upon  the  adjoining  premises;  that  during  all  that  time  he  well 
knew  of  said  improvements,  made  no  objection  thereto,  and  as- 
serted no  claim  to  the  property,  except  the  west  three  feet  there- 
of, adjoining  his  ground,  and  which  he  claimed  as  an  alley,  and, 
even  as  to  such  portion,  he  subsequently  informed  the  witness 
he  was  mistaken ;  and,  lastly,  that  the  plaintiff,  though  residin;^ 
in  the  city  of  Washington  ever  since  about  the  year  1865,  never, 
to  defendant's  knowledge,  until  the  commencement  of  this  action, 
asserted  any  claim  to  the  premises  in  dispute. 

At  that  stage  of  the  trial  the  plaintiff  interposed  and  asked 
the  court  to  inform  the  jury  that  the  testimony  thus  offered,  in 
reference  to  the  defendant's  putting  improvements  on  the  prem- 
ises, was  inadmissible  in  law,  and  that  such  issue  ought  to  be 
found  for  the  plaintiff.  The  court  ruled  that  the  testimony  was 
admissible,  to  which  plaintiff  excepted.  The  defendants  then 
gave  the  said  testimony  in  evidence  to  the  jury,  who  rendered 
a  verdict  against  the  plaintiff  upon  the  issue  set  forth  by  the  first 
bill  of  exceptions. 

The  remaining  bills  of  exceptions  present,  in  different  forms, 
the  general  questions  whether  the  sale  by  Carrington,  as  trustee, 


Sec.  3.]  kirk  v.  Hamilton.  711 

oil  the  19th  of  April,  1864,  was  or  was  not,  upon  the  face  of 
the  record  of  Moore  &  Co.  v.  Kirk,  etc.,  a  mere  nullity.  Its  valid- 
ity is  assailed  by  the  plaintiff  on  various  grounds,  the  most  im- 
portant of  which  seems  to  be :  1.  That  as  Moore  &  Co.  sued  in 
their  own  behalf  only,  and  not  for  the  benefit  of  themselves  and 
other  creditors,  the  jurisdiction  and  power  of  the  court  was  ex- 
hau.sted  by  the  first  sale  (of  lot  No.  78),  which  raised  an  amount 
largely  in  excess  of  the  claims  for  which  Moore  &  Co.  sued.  2. 
That  the  utmost  which  the  court,  upon  the  pleadings,  could  do 
was  to  distribute  such  excess  among  the  other  creditors  of  Kirk 
who  should  appear,  in  proper  form,  and  establish  their  claims. 
3.  That  the  court  was  entirely  without  jurisdiction  to  make  a 
second  order  of  sale,  and  did  not  assume  to  exercise  any  such 
power.  4.  That  the  second  sale  by  Carrington,  having  been 
made  without  any  previous  order  or  direction  of  the  court,  its 
confirmation,  and  the  deed  subsequently  made  to  Hamilton,  were 
absolutely  null  and  void. 

In  the  view  we  take  of  the  ease,  it  is  unnecessary  to  pass  upon 
these  several  objections.  If  it  be  assumed  that  the  record  of  the 
suit  of  Moore  &  Co.  v.  Kirk,  etc.,  was  of  itself  insufficient  in  law 
to  divest  Kirk  of  title  to  the  premises  in  dispute,  or  to  invest 
Hamilton  with  title,  the  question  still  remains,  whether  the  facts 
disclosed  by  the  first  bill  of  exceptions  do  not  constitute  a  defence 
to  the  present  action. 

After  the  confirmation  of  the  sale  of  April  19,  1864,  before 
any  deed  had  been  made,  and  while  the  cause  was  upon  reference 
for  a  statement,  as  well  as  of  the  trustee's  accounts  as  for  dis- 
tribution of  the  fund  realized  by  the  sales.  Kirk,  it  seems,  ap- 
peared Ijefore  the  auditor,  by  an  attorney,  and  made  objection  to 
the  allowance  of  the  simple-contract  debts  which  had  been  proven 
against  him  in  his  absence.  So  far  as  the  record  discloses,  no 
other  objection  to  the  proceedings  was  interposed  by  him.  Un- 
doubtedly he  then  knew,  he  must  be  conclusively  presumed  to 
have  known,  after  he  appeared  before  the  auditor,  all  that  had 
taken  place  in  that  suit  during  his  absence  from  the  DLstrict,  in- 
cluding the  sale  of  the  premises  in  dispute,  which  took  place 
only  a  few  months  prior  to  his  appearance  before  the  auditor. 
If  that  sale  was  a  nullity,  the  court,  upon  application  by  Kirk, 
after  his  appearance  before  the  auditor,  could  have  disregarded 
all  that  had  been  done  subsequently  to  the  first  sale,  discharged 
Hamilton's  bond,  returned  the  money  he  had  paid,  and,  in  addi- 


712  THE    ANSWER.  [CUAi'.  IV. 

tioii,  placed  Kirk  in  the  actual  pus.session  of  the  property.  No 
such  application  was  made.  No  such  claim  asserted.  No  effort 
was  made  by  him  to  prevent  the  execution  of  a  deed  to  the  pur- 
chaser at  the  second  sale.  So  far  as  the  record  shows,  he  seemed 
to  have  acquiesced  in  what  had  been  done  in  his  absence.  In 
1868,  three  years  after  his  return  to  the  city,  and  two  years 
after  Hamilton  had  secured  a  deed  in  i)ursuance  of  his  purchase, 
he  became  aware  that  Hamilton  was  in  actual  possession  of  the 
premises,  claiming  and  improving  them  as  his  propertj'.  He 
personally  knew  of  Hamilton's  expenditures  of  money  in  their 
improvement,  and  remained  silent  as  to  any  claim  of  his  own. 
Indeed,  his  assertion  while  the  improvements  were  being  made, 
of  claim  to  only  three  feet  of  ground  next  to  the  adjoining  lot 
upon  which  he  resided,  was,  in  effect,  a  disclaimer  that  he  had, 
or  would  assert,  a  claim  to  the  remainder  of  the  lots  7  and  9 
which  Hamilton  had  purchased  at  the  sale  in  April,  1864.  And 
his  subsequent  declaration  that  he  was  in  error  in  claiming  even 
that  three  feet  of  ground  only  added  force  to  his  former  dis- 
claimer of  title  in  the  premises.  Hamilton  was  in  possession 
under  an  apparent  title  acquired,  as  we  must  assume  from  the 
records,  in  entire  good  faith,  by  what  he  supposed  to  be  a  valid 
judicial  sale,  under  the  sanction  of  a  court  of  general  jurisdic- 
tion. 

The  only  serious  question  on  this  branch  of  the  case  is  whether, 
consistently  with  the  authorities,  the  defence  is  available  to  Ham- 
ilton in  this  action  of  ejectment  to  recover  possession  of  the 
property.  We  are  of  opinion  that  the  present  case  comes  within 
the  reasons  upon  which  rest  the  established  exceptions  to  the  gen- 
eral rule  that  title  to  land  cannot  be  extinguished  or  trans- 
ferred by  acts  in  pais  or  by  oral  declarations.  "What  I  induce 
my  neighbor  to  regard  as  true  is  the  truth  as  between  us,  if  he 
has  been  misled  by  my  asseveration,"  became  a  settled  rule  of 
property  at  a  very  earh^  period  in  courts  of  equity.  The  same 
principle  is  thus  stated  by  Chancellor  Kent  in  Wendell  v.  Van 
Eensselaer,  1  Johns.  (N.  Y.)  Ch.  344:  "There  is  no  principle 
better  established,  in  this  court,  nor  one  founded  on  more  solid 
tionsiderations  of  equity  and  public  utility,  than  that  which  de- 
clares that  if  one  man,  knowingly,  though  he  does  it  passively, 
by  looking  on,  suffers  another  to  purchase,  and  expend  money  on 
land,  under  an  erroneous  opinion  of  title,  without  making  known 
his  own  claim,  shall  not  afterwards  be  permitted  to  exercise  his 


Sec.  3.]  kirk  v.  Hamilton.  713 

legal  right  against  such  person.  It  would  Ix?  an  act  of  fraud  and 
injustice,  and  his  conscience  is  bound  by  this  equitable  estoppel.'' 
p.  354. 

"While  this  doctrine  oritrinated  in  courts  of  equity,  it  has  been 
applied  in  cases  arising  in  courts  of  law. 

In  The  King  v.  The  Inhabitants  of  Butterton  (6  Durnf.  &  E., 
554),  Mr.  Justice  Lawrence  said:  "I  remember  a  case  some 
years  ago  in  which  Lord  Mansfield  would  not  suffer  a  man  to  re- 
cover, even  in  ejectment,  where  he  had  stood  by  and  seen  the 
defendant  build  on  his  land." 

In  2  Smith,  Lead.  Cas.,  pp.  730-740  (7th  Am.  ed.,  with  notes 
by  Hare  and  Wallace),  the  authorities  are  carefully  examined. 
It  is  there  said  that  there  has  been  an  increasing  disposition  to 
apply  the  doctrine  of  equitable  estoppel  in  courts  of  law.  Again 
(pp.  733-734):  "The  question  presented  in  these  and  other 
eases,  which  involve  the  operation  of  equitable  estoppels  on  real 
estate,  Ls  both  difficult  and  important.  It  is  undoubtedly  true 
that  the  title  to  land  cannot  be  bound  by  an  oral  agreement,  or 
passed  by  matter  in  pais,  without  an  apparent  violation  of  those 
provisions  of  the  Statute  of  Frauds  which  require  a  writing  when 
the  realty  is  involved.  But  it  is  equally  well  settled  that  equity 
will  not  allow  the  statute  to  be  used  as  a  means  of  effecting  the 
fraud  which  it  was  designed  to  prevent,  and  will  withdraw  every 
case  not  within  its  spirit  from  the  rigor  of  its  letter,  if  it  be  pos- 
sible to  do  so  without  violating  the  general  policy  of  the  act,  and 
giving  rise  to  the  uncertainty  which  it  was  meant  to  obviate.  It 
is  well  established  that  an  estate  in  land  may  be  virtually  trans- 
ferred from  one  man  to  another  without  a  writing,  by  a  verbal 
sale  accompanied  by  actual  possession,  or  by  the  failure  of  the 
owner  to  give  notice  of  his  title  to  the  purchaser  under  circum- 
stances where  the  omission  operates  as  a  fraud ;  and,  although  the 
title  does  not  pass  under  these  circumstances,  a  conveyance  will 
be  decreed  by  a  court  of  equity.  It  would,  therefore,  seem  too 
late  to  contend  that  the  title  to  real  estate  cannot  be  passed  by 
matter  in  pais,  without  disregarding  the  Statute  of  Frauds;  and 
the  only  room  for  dispute  is  as  to  the  forum  in  which  relief  must 
be  sought.  The  remedy  in  such  cases  lay  originally  in  an  appli- 
cation to  chancery,  and  no  redress  could  be  had  in  a  mereh'  legal 
tribunal,  except  under  rare  and  exceptional  circumstances.  But 
the  common  law  has  been  enlarged  and  enriched  under  the  prin- 
ciples and  maxims  of  equity,  which  are  constantly  applied  at  the 


714  THE    ANSWER.  [ClIAl*.  1V^ 

present  day  in  this  country,  and  evi-n  in  En-rland.  for  tli.-  n-li.'f 
of  j^'rantees,  the  protfction  of  niort^,'a^'ors,  and  the  benefit  of  pur- 
chasers, by  a  wise  adaptation  of  ancient  forms  to  the  more  liberal 
spirit  of  modern  times.  The  doctrine  of  ecpiitabK'  estoppel  is,  jw 
its  name  indicates,  chiefly,  if  not  wholly,  derived  from  courts  of 
eipiity,  and  as  these  courts  apply  it  to  any  species  of  property, 
there  would  seem  no  reason  why  its  application  should  be  re- 
stricted in  courts  of  law.  Protection  a^'ainst  fraud  is  eciually 
necessary,  whatever  may  be  the  nature  of  the  interest  at  stake; 
and  there  is  nothing  in  the  nature  of  real  estate  to  exclude  thosi- 
wise  and  salutary  principles,  which  are  now  adapted  withnut 
scruple  in  both  juri.sdictions,  in  the  ca.se  of  jx-rsonalty.  And 
whatever  may  be  the  wisdom  of  the  change  through  which  the 
law  has  encroached  on  the  jurisdiction  of  chancery,  it  has  now 
gone  too  far  to  be  confined  within  any  limits  short  of  the  whole 
field  of  jurisprudence.  This  view  is  maintained  by  the  main  cur- 
rent of  decisions." 

This  (picstion  in  a  different  form  was  examined  in  Dickerson  v. 
Colgrove,  100  U.  S.,  578.  This  was  an  action  of  ejectment,  and 
the  defence,  based  upon  equitable  estoppel,  was  adjud^'ed  to  be 
sufficient.  We  there  held  that  the  action  involved  both  the  right 
of  possession  and  the  right  of  property,  and  that  as  the  facts  de- 
veloped showed  that  the  plaintiff  was  not  in  ecjuity  and  con- 
science entitled  to  disturb  the  possession  of  the  defendants,  there 
was  no  reason  why  the  latter  might  not,  under  the  circunLstances 
disclosed,  rely  upon  the  doctrine  of  equitable  estoppel  to  protect 
their  possession. 

Applying  these  principles  to  the  case  in  hand,  it  is  clear,  upon 
the  fact  recited  in  the  first  bill  of  exceptions,  and  which  the  jury 
found  to  have  been  established,  that  the  plaintiff  is  estopped 
from  disturbing  the  possession  of  the  defendants.  He  knew,  as 
we  have  seen,  that  the  defendants  claimed  the  property  under  a 
sale  made  in  an  equity  suit  to  which  he  was  an  original  party. 
The  sale  may  have  been  a  nullity,  and  it  may  be  that  he  could 
have  repudiated  it  as  a  valid  transfer  of  his  right  of  property. 
Instead  of  pursuing  that  course,  he,  with  a  knowledge  of  all  the 
facts,  appeared  before  the  auditor  and  disputed  the  right  of  cer- 
tain creditors  to  be  paid  out  of  the  fund  which  had  been  raised 
by  the  sale  of  this  property.  He  forbore  to  raise  any  question 
whatever  as  to  the  validity  of  the  sale,  and  by  his  conduct  indi- 
cated his  purpose  not  to  make  any  issue  in  reference  to  the  pro- 


Sec.  3.]  kirk  v.  riAMiLxoN.  715 

ceedings  in  the  etiuity  suit.  Kuowin-  that  the  defendant's  claim 
to  the  premises  rested  upon  that  sale,  he  remained  silent  while 
the  latter  expended  lar^'e  sums  in  their  improvement,  and,  in  ef- 
fect, disclaimed  title  in  himself.  He  was  silent  when  pood  faith  re- 
quired him  to  put  the  purchaser  on  puard.  He  should  not  now 
be  heard  to  say  that  that  is  not  true  which  his  conduct  unmistak- 
ably declared  was  true  and  upon  the  faith  of  whieh  others  acted. 

The  evidence  upon  this  point  was  properly  admitted,  and 
oivrated  to  defeat  the  action  independently  of  the  question 
whether  the  sale  by  Carrin-ton,  the  tru.stee,  au<l  its  confirmation 
by  the  ourt,  was,  it-vlf.  a  valid,  biiulin-  transf.r  of  the  title  to 
the  purchaser. 

What  has  been  saul  niKl.rs  it  uiiiieee.ssary  to  consider  the 
questions  of  law  presented  in  the  remaining'  bills  of  exceptions. 

Judumtnt  affirmed.* 


MILLKK  V    FfLTOX. 
17  Cal.  JUj.      [W73.] 

Complaint  in  ejeetment  in  the  usual  form.  The  an.swer  denied 
th.-  allegations  of  the  complaint,  and  then  proceede«l  by  sayinu', 
"and  further  answerinjr,"  etc.,  without  settin-  up  the  other'mat- 
ters  as  a  .s.>parato  defence,  or  in  the  form  of  a  cross-complaint. 
The  matters  further  answered  were  that  the  d.-fendant  j.'ave  the 
plaintiff  a  deed,  ab.solute  in  form,  of  th.-  premises,  but  Uiat  the 
divd  was  intended  as  a  mortu'a<;e  to  secure  a  debt  due  from  the 
defendant  to  the  plaintiff,  and  that  the  defendant  was  ready  and 
willintr  to  pay  the  debt,  and  had  off.red  to  pay  it,  but  that  the 
plaintiff  refused  to  receive  it.  The  answer  also  alleged  that  the 
defendant  was  still  the  owner  in  fee  of  the  premises.  Xo  affirma- 
tive relief  was  asked  for.  The  Court  below  rendered  jud-ment 
for  the  plaintiff,  and  the  defendant  appealed. 

By  the  Court:  It  is  well  .settled  that  an  e,,uitable  defence  in- 
terposed  in  an  action  of  ejectment  should  contain  in  sub.stance 
the  elements  of  a  bill  in  equity,  and  that  its  suflSciency,  other 
than  as  to  mere  form,  is  to  be  determined  by  the  application  of 
the  rules  of  pleading  observed  in  courts  of  equity,  when  relief 
is^ought  there.     (Bruck  v.  Tucker,  42  Cal.  352,  and  cases  there 

•Compare  George  v.  Tate.  102  U.  S.  564. 


71G 


THE    ANSWER.  [CllAl'.  IV. 


cited.)    Tested  by  this  nil.',  tlie  equitable  defence  attempted  here 
jimoimts  to  nothing. 

Jud^niient  and  order  denyini^  new  trial  affirmed— remittitur 

forthwith.* 


CRARY  V.GOODMAN. 

i?  N.  Y.  2G6.      \1S35.] 

Action  to  recover  possession  of  a  jiai-ccl  of  land  situate  in 
Cattaraugus  county,  commenced  in  December,  1848.     The  cause 
was  tried  in  January,  1850,  before  Mr.  Justice  Hoyt.    The  plain- 
tiff proved  that  he  had  the  leiral  title  to  the  premises  in  contro- 
versy.    The  defendant  proved  that  he  occupied  the  premises  as 
tenant  under  one  Huntley,  and  that  they  were  adjacent  to  other 
lands  owned  by  the  latter,  and  he  alleged  in  his  answer,  and 
offered  to  prove  upon  the  trial,  facts  tending  to  show  that  the 
land  in  dispute  was  included  in  the  purchase,  by  Huntley,  of  the 
adjacent  premises  from  the  plaintiff's  grantors,  and  that  by  a 
mutual  mistake  of  the  parties,  it  was  not  included  in  the  convey- 
ance thereof ;  and  that  in  equity  Huntley  was  entitled,  as  against 
the  plaintiff,  and  his  grantors,  to  a  conveyance  of  the  premises, 
the  possession  of  which  was  in  controversy.    To  this  evidence,  the 
counsel  for  the  plaintiff  objected;  and  the  justice  decided  that  no 
equitable  defence  could  be  interposed  in  this  action  to  the  plain- 
tiff's right  to  recover  upon  the  legal  title,  and  rejected  the  evi- 
dence; the  counsel  for  the  defendant  excepted.     A  verdict  was 
rendered  in  favor  of  the  plaintiff.  From  the  judgment  entered  on 
this  verdict,  the  defendant  appealed.    The  case  was  heard  on  the 
appeal  at  a  general  term  of  the  supreme  court  in  the  8th  district, 
and  the  judgment  affirmed.    (See  9  Barbour,  657.)     The  defend- 
ant appealed  to  this  court.    The  case  was  submitted  on  printed 
briefs. 

Johnson,  J.,  delivered  the  opinion  of  the  court: 

The  principal  ground  on  Avhich  this  case  was  disposed  of  at  the 

trial  was,  that  in  an  action  to  recover  real  property  brought 

under  the  Code  of  1848,  when  the  plaintiff's  claim  is  founded 

upon  a  legal  title,  the  defendant  cannot  avail  himself  of  an  equi- 

*See  also  Reilly  v.  Cullen,  159    Mo.  322. 


Sec.  3. J  crary  v.  goodman.  717 

tcible  right  to  defeat  that  title  by  way  of  defence  in  the  suit. 
This,  likewise,  was  the  single  ground  upon  which  the  judgment 
at  the  trial  was  affirmed  at  the  general  term,     (9  Barb.,  657.) 
Although  much  dift'erence  of  opinion  has  existed  in  the  different 
courts  of  this  state  in  regard  to  the  effect  of  the  Code  of  Pro- 
cedure in  this  particular,  the  question  has  been  adjudged  in  this 
court  (Dobson  v.  Pearce,  ante,  156) ;  and  it  is  now  neither  neces- 
sary nor  projier  to  discuss  it.     In  the  case  cited,  which  was  an 
action  upon  a  judgment,  the  Superior  Court  of  the  City  of  New 
York  allowed,  as  a  defence  to  the  action,  facts  which  made  out  a 
right  in  the  defendant  to  relief  upon  equitable  grounds  against 
the  judgment,  but  which  confessedly  would  not  have  been  avail- 
able as  a  defence  to  the  action  at  law  before  the  Code.   The  case 
arose  and  was  tried  in  the  superior  court,  before  the  amendments 
to  the  Code  passed  in  1852;  one  of  which  provides,  in  express 
terms,  that  the  defoudant  may  S4't  up  as  many  defenses  a.s  he  has, 
whether  they  are  such  as  have  b<'en  theretofore  denominated  legal, 
or  equitable,  or  both.    This  judgment  was  affirmed  in  this  court 
upon  the  ground  that  siiiee  the  enactment  of  the  Code,  which  in 
terms  abolishes  the  distinction  between  actions  at  law  and  suits 
in  equity,  and  prescribes  but  a  single  form  of  civil  action,  the 
question  in  an  action  is  not  whether  the  plaintiff  has  a  legal  right 
or  an  equitable  right,  or  the  defendant  a  legal  or  an  equitable 
defence  against  the  plaintift''s  claim;  but  whether,  according  to 
the  whole  law  of  the  land,  applicable  to  the  ca.se,  the  plaintiff 
makes  out  the  right  which  he  .seeks  to  establish,  or  the  defendant 
shows  that  the  plaintiff'  ought  not  to  have  the  relief  sought  for. 

As  the  court,  upon  the  defendant's  offers  of  proof,  ruled  that 
no  equitable  defence  could  be  interposed,  and  in  this  was,  as  we 
have  seen,  in  error,  the  defendant  is  entitled  to  a  new  trial.  We 
express  no  opinion  whether  the  defendant  did,  or  did  not  make 
out  by  his  offers  such  an  equitable  defence,  because,  if  his  offer 
was  defective,  under  the  distinct  ruling  of  the  court,  no  alter- 
ation in  its  terms  or  substance  would  have  availed  him.  The 
judgment  should  be  reversed  and  a  new  trial  ordered. 

Judrjmcnt  accordingly* 

♦Sill,  P.  J.  (in  Crary  v.  Goodman,  9  Barbour  657):  "It  follows 
that  an  equitable  right  in  a  defendant,  to  have  land  conveyed  to  him, 
is  not  a  defense  to  an  action  for  the  possession,  any  more  than  it  was 
before  the  Code  was  adopted.  The  right  to  the  possession  is  incidental 
to  the  legal  title;  or  rather  it  is  one  essential  ingredient  of  it    Where 


718  THE   ANSWER.  [CUAP.  IV. 

DALE  V.  IIUXNEMAN. 

12  Neb.,  221     [1S31.] 

Maxwell,  C.  J. :  This  is  an  action  in  ejectment,  the  defence 
beinf?  a  general  denial.  Judgment  in  the  court  below  was  ren- 
dered in  favor  of  Ilunneman.  The  errors  assigned  will  be  con- 
sidered in  their  order.  *  *  *  Second,  it  is  urged  that  the 
court  erred  in  excluding  the  testimony  of  the  plaintiff  (defend- 
ant below)  as  to  the  value  of  lasting  and  valuable  improvements 
erected  by  him  on  the  premises  in  controversy. 

It  appears  from  the  testimony  that  the  plaintiff  took  possession 
of  the  premises  in  the  spring  of  1874,  under  a  verbal  lease  from 
W.  B.  Doddridge ;  that  he  remained  in  possession  as  such  tenant 
until  IMarch,  1877,  at  which  time  a  proposition  was  made  by 
Doddridge  to  Dale  offering  to  sell  him  the  premises  for  the  sum 
of  $1,000,  payable  in  county  warrants.  This  proposition  seems 
to  have  been  accepted ;  the  warrants  to  be  delivered  on  or  before 
July  1,  1877.  None  of  the  warrants  have  ever  been  delivered,  nor 
has  the  plaintiff  paid  any  sum  whatever  for  said  premises ;  nor 
does  he  now  offer  to  comply  with  said  contract  in  any  manner  or 
form.  This  being  the  case,  the  mere  fact  that  the  plaintiff  had 
made  valuable  improvements  upon  the  premises  constituted  no 
defence  to  an  action  for  the  possession.     If  the  case  is  within 


is  the  reason  for  saying  that  the  sixty-ninth  section  of  the  code  has 
detached  the  essential  interest  from  the  legal  estate  and  appended  it 
to  an  equitable  interest  merely?  The  argument  comes  to  this,  and  to 
maintain  the  defense,  it  must  be  held  that  the  code  has  transferred 
the  right  to  the  possession  of  land  from  the  legal  owner  to  him  who 
has  an  equitable  claim  to  the  title.  Such  an  interpretation  would  pro- 
duce the  consequences  which  the  commissioners  said  it  was  their  duty 
to  guard  against.  It  would,  by  construction,  "encroach  upon  sub- 
stantial rights,''  which  both  the  common  law  and  pre-existing  statutes 
concurred  in  securing  to  him  who  holds  the  legal  title.  It  seems  to 
me  that  the  defendant's  argument,  when  followed  out,  destroys  itself. 
The  facts  offered  to  be  proved  by  him,  are  claimed  to  constitute  an 
equitable  defence  to  the  action.  But  to  give  it  efficacy,  it  is  necessary 
to  insist  that  the  equitable  owner  has  the  right  to  possession,  as  between 
him  and  the  owner  in  fee.  If  this  were  so,  the  defence  would  be  a 
legal  one.  The  action  is  for  the  possession,  and  he  who  is  entitled  to 
the  possession  is,  by  the  common  law,  entitled  to  judgment.  Thus  .the 
case  is  placed  without  the  operation  of  the  section,  the  application  of 
which  is  indispensable,  as  a  starting  point  in  the  argument." 


Sec.  3.]  dale  v.  hunneman.  719 

the  provisions  of  the  occupying  claimant's  act,  he  may  still  apply 
for  relief  as  to  the  value  of  such  improvements.  Section  626  of 
the  Code  provides  that  "in  an  action  for  the  recovery  of  real 
property  it  shall  be  sufficient  if  the  plaintiff  state  in  his  petition 
that  he  has  a  lf;:al  estate  therein,  and  is  entitled  to  the  possession 
thereof, ' '  etc. 

Section  627  provides  that  "it  shall  be  sufficient  in  such  action 
if  the  defendant  in  his  answer  deny  generally  the  title  alleged  in 
the  petition,  or  that  he  withholds  the  possession,  as  the  case  may 
be;  but  if  he  deny  the  title  of  the  plaintiff,  possession  of  the  de- 
fendant will  be  admitted."  The  action  of  ejectment  was  origin- 
ally devised  to  enable  a  tenant  for  years  to  recover  the  possession 
of  the  demised  premises  during  the  term,  real  actions  at  that  time 
being  confined  to  freehold  estates.  Blackstone  says:  "In  order 
to  maintain  the  action,  the  plaintiff  must,  in  case  of  any  defence, 
make  out  four  points  before  the  court,  viz.,  title,  lease,  entry,  and 
ouster.  First,  he  must  show  a  good  title  in  hLs  lessor,  which 
brings  the  matter  of  right  entirely  before  the  court ;  then  that  the 
lessor,  being  seized  or  possessed  by  virtue  of  such  title,  did  make 
him  the  lease  fur  the  present  term;  thirdly,  that  he,  the  lessee  or 
X)laintiff,  did  enter  or  take  possession  in  consequence  of  such 
lease;  and  then,  lastly,  that  the  defendant  ousted,  or  ejected 
him."    3  Black.  Com.  202. 

The  form  of  the  action  was  afterwards  modified  so  as  to  allow 
no  question  to  be  raised  except  that  of  title  and  possessiim ;  and 
if  the  plaintiff  was  entitled  to  the  possession,  he  could  recover 
whether  the  party  in  possession  had  ousted  him  or  not.  Under 
the  Code,  to  entitle  the  plaintiff  to  recover,  he  must  possess  a 
legal  estate  in  the  premises,  and  must  state  in  his  petition  that 
he  is  entitled  to  the  possession  of  the  premises.  Where  the  facts 
stated  in  the  petition  are  denied,  the  plaintiff,  to  be  entitled  to 
recover,  must  prove  that  he  possesses  a  legal  estate  in  the  prem- 
ises and  is  entitled  to  the  possession  of  the  same.  If  the  defendant 
possesses  an  equity  which  negatives  the  plaintiff's  right  of  pos- 
session, such  equity  may  be  proved  under  a  general  denial,  as  it 
is  a  mere  defence  to  the  action.  But  if  the  defendant  seeks  af- 
firmative relief,  such  as  to  enforce  a  contract  which  does  not 
give  him  the  right  of  possession,  but  does  give  him  a  right  to 
demand  a  specific  performance  of  the  contract  by  the  plaintiff, 
by  W'hich  the  right  to  continue  in  possession  of  the  premises  de- 
pends, he  must  plead  the  facts  entitling  him  to  such  relief  and 


720  THE    ANSWER.  ICHAI".     IV. 

his  answer  must  contain  all  the  facts  necessary  to  entitle  him 
to  such  relief.  In  other  words,  he  may  .set  up  in  his  answer  tiie 
facts  showing  him  to  have  an  equitable  right  to  a  conveyance 
from  the  plaintifT,  and  if  he  prove  him.self  to  be  equitably  the 
owner  and  entitled  to  the  possession,  he  will  not  only  defeat  the 
action,  but  obtain  affirmative  relief.  In  all  cases  where  affirma- 
tive relief  is  sought  by  the  defendant,  the  facts  entitling  liim 
thereto  must  be  set  up  in  the  answer.  See,  Bliss,  Code  Pleadings, 
§§  349-351 ;  Dewey  v.  Iloag,  15  Barb.  365 ;  Dupont  v.  Davis,  35 
Wis.  631;  E.stada  v.  Murphy,  19  Cal.  248;  Blum  v.  Uobertson, 
24  Cal.  128;  Bruek  v.  Tucker,  42  Cal.  346. 

The  reason  is,  a  counter-claim  is  an  independent  cause  of 
action,  in  which  the  defendant  becomes  an  actor  in  respect  to 
his  claim,  and  it  is  required  to  be  stated  with  the  .same  distinct- 
ness and  certainty  as  in  a  petition.  The  evidence  as  to  the  value 
of  the  improvements  was  inadmissible  under  thr  pleadings,  and 
was  properly  excluded. 

The  judgment  of  the  district  court  is  clearly  right,  and  is  af- 
firmed. 


LOMBARD  V.  COWIIAM. 
31  }Yis.  486.     [1871.] 

Error  to  the  Circuit  Court  for  Winnebago  County. 

This  action  below  was  brought  by  Lombard  to  recover  the  un- 
divided one-half  of  an  eighty  acre  lot  situated  in  the  county  of 
Fond  du  Lac.  Tlie  complaint  is  the  usual  form  of  complaints 
in  actions  of  ejectment.  The  answer  is,  1st,  A  general  denial; 
2nd,  The  statute  of  limitations;  3rd,  An  estoppel.  The  Circuit 
Court  seems  to  have  held  that  the  special  answers  were  defective, 
and  that  no  testimony  was  admissible  on  behalf  of  the  defendant, 
except  such  as  was  admissible  under  the  general  denial  alone. 

It  appears  that  the  land  in  controversy  was  purchased  of  the 
government,  in  1847,  by  one  Andrew  j\Ieritt,  who  died  intestate 
and  seized  of  such  land,  in  1855,  leaving  his  two  sisters,  Polly  A. 
Little  and  Betsey  R.  Clark,  his  sole  heirs-at-law.  The  plaintiff 
claims  title  under  a  conveyance  from  Betsey  R.  Clark,  executed 
in  1870;   and  the  defendant  claims  title  under  a  convevance 


Sec.  3.]  lomb.vrd  v.  cowiiam.  721 

executed  in  185G  by  the  adininistratcjr  of  the  estate  of  Andnw 
Meritt  to  one  Aekerson,  and  mesne  conveyances  from  the  latter 
to  the  defendant. 

The  estoppel  i)leaded,  or  attempted  to  be,  is  to  the  etl'eet  that 
the  purchase  money  paid  by  Aekerson  for  the  land  was  used  to 
pay  the  debts  of  the  intestate  ehar«;eable  upon  the  estate,  and,  a 
surplus  remainintr  after  payin;;  such  debts,  the  same  was  dis- 
tributed to  the  heirs;  and  that  Mrs.  Clark,  with  full  knowledj^e 
of  all  the  facts,  received  her  portion  of  the  surplus  and  retains 
the  same;  and  further,  that  the  plaintiff  is  ehar^reable  with  no- 
tice  of  the  forej^oin^r  facts  when  he  took  a  conveyance  of  the  land 
from  Mi-s.  Clark. 

The  court  fund'-r  (•hjictioii  >  udniitted  testimony  tendinjx  to 
show  that  the  plaintiff  procured  such  conveyancf  by  fraudulent- 
ly representinj:  to  Mri.  Clark  that  he  desired  it  fur  the  benefit  of 
the  purchaser  at  the  admini.strator's  sale,  and  to  cure  certain 
defects  in  his  title;  and  that  she  e.xeeuted  the  sanie  for  a  nominal 
consideration,  and  for  the  .sole  purpose  of  confirmin«r  and  ratify- 
ini:  the  title  of  such  purchaser.  These  facts  arc  not  stated  in  the 
answer. 

The  following  instruction  was  a.sked  on  Ixdialf  of  the  plaintiff, 
and  refused:  "In  this  action,  under  the  pleadiii;.'s.  you  cannot 
consider  any  ecpiities  of  the  defendant.  The  le^^'al  title  must 
prevail  over  any  equitable  claim  or  title."  The  court  instructed 
the  jur>'  as  follows:  "There  is  in  thus  action  and  upon  this  testi- 
mony but  one  (jU(^tion  for  your  determination,  and  that  is  the 
question  whether  the  deed  under  which  the  plaintifY  claims  from 
Betsey  R.  Clark,  was  fraudulently  procured  by  the  plaintiff  or 
his  ajrent.  If  it  was  procured  by  fraudulent  representations  that 
the  plaintiff  or  his  ai,'ent  was  obtaininj;  this  deed  for  the  benefit 
and  for  the  purpose  of  supportinj:  the  title  of  the  {jrantee  in  the 
administrator's  deed  and  those  holdinfj  under  him,  and  you  be- 
lieve that  to  be  true  from  the  testimony  in  this  ca.se,  that  deed 
is  void,  the  plaintifY  has  no  title,  and  the  defendant  iS  entitled  to 
your  verdict." 

The  jury  returned  a  verdi(;t  for  the  defendant :  and  judgment 

pursuant  thereto  was  duly  entered  and  perfected  aj^ainst  the 

plaintiff:  who  brought  the  ease  to  this  court  by  writ  of  error. 
•     •     • 

Lyon,  J.     It  seems  to  be  conceded  that  the  proceedincrs  in  the 
probate  court  preliminary  to  the  sale  and  conveyance  of  the  land 
46 


122  TILE    ANSWER.  [Cu.VP.  IV. 

in  controversy,  by  the  administrator  of  the  estate  of  Mi-ritt  to 
the  grantor  of  the  defendant,  are  so  defective  and  irregular  that 
they  will  not  support  a  conveyance,  and  hence,  that  the  adminis- 
tor's  deed  is  void.    If  that  deed  is  void,  the  legal  title  to  an  un- 
divided half  of  the  land  was  in  Mrs.  Clark  until  she  conveyed  to 
the  plaintiir  in  1870.    The  circuit  court  held  that  if  the  plaintiff 
or  his  agent  procured  the  conveyance  from  ]Mrs.  Clark  by  fraudu- 
lently representing  to  lier  that  he  desired  it  for  the  benefit  of 
the  grantee  in  the  administrator's  deed,  or  those  claiming  under 
such  grantee,  and  if  ^Irs.  Clark  executed  the  conveyance  with 
the  intention,  and  for  the  purpose  of  ratifying  and  confirming 
the  title  of  tho.se  holding  under  the  administrator's  deed,  the 
conveyance  to  the  plaintitt'  is  void,  and  the  title  still  remains 
in  Mrs.  Clark.    We  think  that  this  is  an  error,  and  that  at  least 
the  lc(jal  title  passed  to  the  plaiiitifi"  by  virtue  of  such  conveyance. 
But,  assuming  that  the  plaintiff  obtained  his  title  by  the  fraud- 
ulent means  just  mentioned,  is  the  defendant  affected  by  that 
fact,  and  can  he  claim  an  equitable  interest  in  the  land  in  con- 
troversy by  reason  of  the  alleged  fraud  ?    We  think  this  question 
lias  been  determined  by  this  court  in  the  case  of  Onson  v.  Cnwn. 
22  Wis.  329.  That,  also,  was  an  action  of  ejectment.     The  de- 
fence was  that  the  land  in  controversy  was  school  land ;  that 
the  defendant  once  held  a  certificate  therefor  from  the  state, 
which  became  forfeited  for  nonpayment  of  interest,  and  the  land 
was  resold  to  one  Keyes;  that  Larson,  the  grantor  of  the  plaintiff, 
applied  to  Keyes  to  purchjuse  the  land,  and  stated  that  he  desired 
to  do  so  for  the  benefit  of  the  defendant;  and  that  thereupon 
Keyes  assigned  his  certificate  to  Larson,  who  paid  for  the  land 
and  took  a  patent  therefor  from  the  state.     There  had  been  no 
previous  arrangement  between  Larson  and  the  defendant  con- 
cerning the  land.     The  answer  contained  a  counter-claim,  and 
demanded  that  the  plaintiff  be  adjudged  to  convey  the  land  to 
the  defendant.    This  was  held  to  be  a  good  defence  and  counter- 
claim;  and  the  facts  therein  stated  having  been  proved,  the 
plaintiff  (who  had  notice  of  such  facts  when  he  took  his  con- 
j  veyanee)  was  compelled  to  convey  the  land,  to  which  his  grantor 
had  thus  fraudulently  obtained  title,  to  the  defendant.     There 
were  some  equities  to  be  adjusted  in  that  case  which  do  not  exist 
here.    The  principle  applied  in  that  case  is  thus  stated  in  Perry 
on  Trusts,  §  172 :    '  *  If  a  purchaser  at  auction  or  otherwise  rep- 
resents that  he  is  purchasing  or  bidding  for  some  other  person, 


Sec.  3.]  Lombard  v.  cowham.  723 

as  for  the  debtor  in  a  sale  imdcr  an  execution,  or  for  the  mort- 
ga^ior  in  a  sale  under  a  foreclosure,  or  for  the  family  under  an 
executor's  or  administrator's  sale,  and  competition  is  thus  pre- 
vented, and  the  sale  is  made  on  his  own  terms,  equity  will  decree 
that  such  person  shall  be  a  trustee  for  the  person  for  whom  he 
represented  that  he  was  acting," 

It  will  be  observed  that  conveyances  thus  obtained  are  not 
declared  void,  but  are  held  to  pass  the  le^'al  estate  to  the  grantee, 
but  subject,  in  ecpiity,  to  a  trust  in  favor  of  him  for  whom  the 
grantor  iirofess.d  to  a<t,  coextensive  with  his  profession  or  rep- 
resentation in  that  behalf. 

But  it  may  be  argued  that  it  is  quite  immaterial  in  this  case 
whether  the  conveyance  to  the  plaintiff  be  held  void,  or  whether 
it  be  held  valid  to  pass  the  legal  title,  with  a  trust  engrafted 
upon  it  in  favor  of  the  defendant,  inasmuch  as,  in  either  case, 
the  plaintitT  must  fail  in  his  action;  and  lieiiee  that  the  judgment 
bhould  not  be  reversed  because  the  court  eired  in  the  instruction 
that  the  conveyance  was  void  if  obtained  by  means  of  fraudulent 
representations  stated  in  the  charge.  A  little  retiection  will 
satisfy  the  mind  that  the  argument  is  unsound.  The  error  is  not 
immaterial.  Were  the  conveyance  to  plaint  ill'  void  in  the  con- 
tingency mentioned,  the  question  of  the  existence  of  such  con- 
tingency would  be  one  of  fact  for  the  jury  to  determine,  and 
would  doubtless  be  available  to  the  defendant,  as  a  defence,  un- 
der the  pleadings.  To  prove  that  the  conveyance  under  which 
the  plaintiff  claims  title  is  void,  is  merely  one  method  of  proving 
that  the  title  to  the  land  in  controversy  is  in  some  third  party. 
This  is  strictly  a  legal  defence,  is  admi.ssible  under  the  general 
denial,  and,  when  proved,  defeats  the  action. 

But  the  conveyance  being  a  valid  one  to  pa.ss  the  legal  title 
to  the  plaintiff,  the  defence  that  it  enures  to  the  benefit  of  the 
defendant  is  purely  an  equitable  defence  in  that,  if  established,  it 
results  in  the  declaration  and  enforcement  of  a  trust,  which  is  a 
matter  cognizable  in  courts  of  equity  alone.  The  issue  upon  such 
a  defence,  if  affirmative  relief  is  demanded  by  the  defendant,  is 
triable  by  the  court,  unless  the  court  shall  order  the  same  to  be 
tried  by  a  jury,  as  it  may  order  questions  of  fact  to  be  so  tried 
in  other  equity  cases,  in  its  discretion.  Tay.  Stat.,  1494,  §  6.  But 
in  such  case  the  verdict  does  not  have  the  same  force  and  effect 
as  verdicts  in  actions  at  law.  It  is  not  binding  upon  the  judg- 
ment of  the  court,  and  if  unsatisfactory  and  against  the  weight 


724  THE    ANSWER.  [ClIAP.  IV. 

of  the  testimony,  the  court  may  set  it  aside  and  order  a  new  trial 
of  the  issue,  or  may  vacate  the  order  awardin«,'  a  jury  trial,  and 
decide  the  issue  without  intervention  of  a  jury.  Jackman's  Ap- 
peal, 26  Wis.,  104.  That  the  court  should  retain  this  plenary 
control  over  verdicts  in  equity  cases  where  jury  trials  are  award- 
ed, is  a  material  and  valuable  right  of  the  parties.  Hence,  an 
error  which  results  in  depriving  the  court  of  that  power,  must 
necessarily  be  a  material  error. 

The  counsel  for  the  defendant,  evidently  perceiving  the  diffi- 
culty, argue  in  their  brief  that  in  cases  of  fraud,  equity  and  law 
have  concurrent  jurisdiction.  In  some  eases  of  fraud  this  is 
true,  but  it  is  not  true  as  a  general  proposition.  "We  apprehend 
that  the  learned  counsel  would  be  at  a  loss  how  to  proceed,  in 
order  to  procure  in  an  action  at  law  a  declaration  and  enforce- 
ment of  the  trust  which  may  result  to  their  client  by  reason  of 
the  alleged  fraud  of  the  plaintiff  in  procuring  his  conveyance. 

The  defence,  being  an  equitable  one,  to  be  available  in  an 
action  of  ejectment,  must  be  set  up  in  the  answer,  and  be  accom- 
panied by  a  demand  for  such  relief  as  the  defendant  supposes 
himself  entitled  to.  Tay.  Stat.,  1667,  §  7  (R.  S.,  Ch.  141,  sec.  7.) 
A  mere  equitable  defence  is  not  sufficient.  There  must  be  a 
counter-claim  also.  The  statute  was  doubtless  intended  to  avoid 
the  difficulty  suggested  by  Hand,  J.,  in  Dewey  v.  Iloag,  15  Barb. 
365.  He  says :  "  I  do  not  understand  there  is  any  equitable  de- 
fence, simply  as  a  defence,  in  an  action  of  ejectment.  The  effect 
of  that  might  be  to  keep  the  legal  title  and  possession  forever 
separate."  (p.  369.) 

pu» — "^  ^^    I      The  court  erred^  therefore,  in  admitting,  under  the  pleadings, 

^^^""^XC^^l  testimony  tending  to  show  that  the  plaintiff  procured  his  con- 
^  'o^  I  veyance  by  representing  to  Mrs.  Clark,  his  grantor,  that  he  de- 

y,^  I  sired  it  for  the  benefit  of  the^  purchaser  at  the  administrator^ 

I  sale,  or  those  claiming  undeFTiim.     There  must  be  a  new  trial; 

X  C^       )  but,  under  the  circumstances,  the  defendant  should  be  permitted, 

r'"^  <i,-^>'*'''^  j  on  such  terms  as  the  circuit  court  shall  deem  just,  to  amend  his 
j^_^c>^    j  answer  so  as  to  interpose  such  equitable  defence  and  counter- 
claim. 

The  case  of  Kent  v.  Agard,  24  Wis.  378,  does  not  conflict  with 
the  foregoing  views.  It  was  there  held  that  in  an  action  of 
ejectment  a  part}""  may  show,  without  specially  pleading  the  fact, 
that  a  conveyance,  absolute  upon  its  face,  is  a  mortgage,  and  that 
the  debt  which  it  was  given  to  secure  has  been  paid.    There  is 


Sec.  3.]  Lombard  v.  cowiiam.  725 

no  doubt  of  the  correctness  of  that  decision;  and  it  is  perfectly 
clear  that  it  is  not  applicable  to  this  case. 
By  the  Court :    Judj-'ment  reversed,  and  a  new  trial  awarded. 


Section  4.     Counter  Clednis. 

VASSEAK  V.  LIVINGSTON. 
13  N.  Y.  218.     [18:15.] 

The  action  was  broujrht  in  1853  by  the  plaintiff,  as  the  as- 
sigrnee  of  Alexander  II.  Ritchie,  and  the  complaint  set  forth  that 
the  defendant  employed  Ritchie  to  engrave  four  likenesses  for 
$50  each,  which  Ritchie,  it  was  alleged,  had  done,  and  that  the 
defendant  had  refused  to  receive  the  plates  and  pay  for  the 
engraving;  and  furthermore  that  Ritchie  had  assigned  the  demand 
to  the  plaintiff.  The  answer  denied  the  allegation  of  the  com- 
plaint, and  as  a  further  and  separate  answer  set  forth  that  Ritchie 
had  agreed  to  engrave  the  four  plates  from  daguerreotype  por- 
traits for  the  defendant,  and  to  finish  and  deliver  them  within 
six  weeks  from  April  2nd,  1853 ;  that  he  had  failed  to  perform 
that  agreemnet;  that  the  portraits  were  designed,  as  Ritchie  knew, 
for  illustrations  of  a  periodical  publication  issued  by  the  de- 
fendant, and  that  the  latter  had  sustained  damages  on  the  ac- 
count of  Ritchie's  default  in  the  premises  to  $200,  which  the  de- 
fendant claimed  to  recoup  and  set-off  against  any  damages  to 
be  established  by  the  plaintiff'.  The  answer  concluded  by  pray- 
ing judgment  for  damages  against  the  plaintiff'  of  $200.  No 
reply  was  put  in. 

On  the  trial  before  Chief  Justice  Oakley,  the  defendant,  before 
any  evidence  was  given,  asked  for  a  dismissal  of  the  complaint, 
on  the  ground  that  the  answer  contained  a  counter  claim,  which, 
there  being  no  reply,  was  admitted;  and  as  the  damages  of  the 
defendant,  as  stated  in  the  answer^  were  equal  to  the  claim  made 
by  the  plaintiff,  there  could,  it  was  claimed,  be  no  recovery  in 
favor  of  the  plaintiff.  The  motion  was  denied  and  the  defendant 
excepted.  *  *  *  Verdict  for  the  plaintiff.  The  judgment 
was  affirmed  at  the  general  term,  whereupon  the  defendant  ap- 
pealed to  this  court.     The  case  was  submitted  on  printed  points. 

Denio.  J.  The  objections  chiefly  insisted  on  by  the  defendant 
proceed  upon  the  assumption  that  his  answer  contained  new 


726  THE   ANSWER.  [ChAP.  IV. 

matter  constituting  a  counter-claim,  and  if  he  is  correct  in  this, 
he  would  be  entitled  to  judgment  on  the  pleadings,  for  the  mat- 
ters set  up  in  the  answer  and  which  are  not  replied  to,  would, 
if  admitted  on  the  record,  furnish  a  complete  answer  and  an 
effectual  bar  to  the  cause  of  action  set  up  in  the  complaint.  But 
there  is  nothing  in  the  nature  of  a  counter-claim  stated  in  the 
answer.  There  was  never  any  contract  between  the  plaintiff  and 
the  defendant;  and  although  the  new  matter  was,  if  true,  very 
pertinent  to  preclude  the  plaintiff  from  recovering  on  the  de- 
mand assigned  to  him  by  Ritchie,  it  had  no  tendency  to  show  an 
independent  cause  of  action  in  favor  of  the  defendant  against 
the  plaintiff.  Section  150  of  the  Code  of  Procedure  defines  a 
counter-claim.  It  must  be  a  claim  existing  in  favor  of  the  de- 
fendant against  the  plaintiff,  arising  either  out  of  the  contract  or 
transaction  sued  on,  or  some  other  contract.  Here  the  defendant 
had  no  claim  against  the  plaintiff.  If  the  facts  were  truly  stated, 
he  had  grounds  for  defending  himself  against  the  plaintiff's  suit, 
but  none  whatever  for  an  independent  recovery  against  him. 
A  counter-claim  must  contain  the  substance  necessary  to  sustain 
an  action  on  behalf  of  the  defendant  against  the  plaintiff,  if  the 
plaintiff  had  not  sued  the  defendant.  It  is  quite  obvious  that 
nothing  of  that  nature  is  stated  in  this  answer.  Where  there  is 
no  counter-claim  set  up  in  the  answer  there  is  no  necessity  of  a 
reply,  and  the  failure  to  put  one  in  is  not  an  admission  of  any- 
thing stated  in  the  answer.  In  such  cases,  the  answer  is  con- 
sidered as  put  in  issue  upon  a  replication  denying  all  the  state- 
ments of  new  matter  contained  in  it.  (Code  §§153,  168). 
*     *     # 

Marvin,  J.  Upon  the  trial,  previous  to  the  introduction  of  evi- 
dence, the  defendant  moved  that  the  complaint  be  dismissed  on 
the  ground  that  the  answer  contained  material  allegations  of  new 
matter,  constituting  a  counter-claim  for  $200,  and  as  it  had  not 
been  controverted  by  a  reply,  the  allegations  must,  for  the  pur- 
poses of  the  action,  be  taken  as  true,  and  the  plaintiff's  claim 
being  only  $200,  the  defendant  was  entitled  to  a  judgment  upon 
the  pleadings.  This  motion  was  denied,  and  the  defendant  ex- 
cepted. This  decision  presents  the  most  important  question  in 
the  case,  and  I  think  the  defendant  has  misapprehended  the  effect 
of  the  pleadings.  Let  us  bring  here  under  notice  the  provisions 
of  the  Code  which,  it  is  supposed,  control  the  question.  The  an- 
swer is  to  contain:    (1)     A  general  or  specific  denial  of  each 


Sec.  4]  vassear  v.  Livingston.  727 

material  allegation  of  the  complaint  controverted  by  the  de- 
fendant; (2)  A  statement  of  any  new  matter  constituting  a 
defence  or  counter-claim.  (Code  §149.)  The  counter-claim 
must  be  one  existing  in  favor  of  a  defendant  and  against  a 
plaintiff,  between  whom  a  several  judgment  may  be  had  in  the 
action,  and  arising  out  of  one  of  the  following  causes  of  action: 
(1)  A  cause  of  action  arising  out  of  the  contract  or  transaction 
set  forth  in  the  complaint  as  the  foundation  of  the  plaintiff's 
claim,  or  connected  with  the  subject  of  the  action;  (2)  In  an 
action  arising  on  contract,  any  other  cause  of  action  arising  on 
contract,  and  existing  at  the  commencement  of  the  action.  (§  150.) 
"When  the  answer  contains  new  matter,  constituting  a  counter- 
claim, the  plaintiff  may,  within  twenty  days,  reply  to  such  new 
matter,  denying  generally  or  specifically  each  allegation  contro- 
verted by  him,  &c.     (§  153.) 

By  §  168,  every  material  allegation  of  new  matter  in  the 
answer,  constituting  a  counter-claim,  not  controverted  by  the 
reply,  shall  for  the  purp/3ses  of  the  action  be  taken  as  true. 

A  good  cause  of  action  was  set  forth  in  the  complaint,  and 
the  defendant,  by  his  answer,  put  in  issue  the  material  allegations 
of  the  complaint.  The  new  matters  pleaded  did  not  dispense  with 
the  necessity  of  trying  the  issues  formed  directly  upon  the  com- 
plaint. The  defendant  did  not,  and  does  not  now  claim  that  the 
new  matter  in  the  answer  showed  that  the  plaintiff  had  no  cause 
of  action,  but  he  claimed  that  the  new  matter  showed  that  he, 
the  defendant,  had  a  cause  of  action  or  counter-claim  against 
Ritchie,  the  assignor,  in  which  his  damages  were  equal  to  the 
damages  claimed  by  the  plaintiff,  and  that  when  these  damages 
were  set-off  or  recouped,  they  left  the  plaintiff  without  any  right 
to  damages,  and  that  therefore  his  complaint  should  be  dismissed. 
This  position  cannot  be  sustained.  The  new  matter  stated  con- 
stituted  in  no  sense  a  set-off.  It  constituted,  if  applicable  to 
the  case  made  by  the  complaint,  that  is,  if  it  related  to  the  same 
contract  or  employment  stated  in  the  complaint,  a  defence  upon 
the  ground  of  failure  on  the  part  of  Ritchie  to  perform  the 
agreement.  A  set-off  could  in  no  way  arise  out  of  such  failure. 
Did  the  answer,  in  which  the  defendant  proposed  to  recoup  and 
set-off  his  damages,  state  facts  authorizing  a  recoupment,  or  facts 
involving  the  doctrine  of  recoupment  in  any  wise  ?  Clearly  not. 
The  facts,  assuming  that  the  pleader  intended  them  to  apply  to 
the  cause  of  action  stated  in  the  complaint,  did  not  involve  the 


728  TUE   ANSWER.  [ClI.\P.  IV. 

doctrine  of  recoupment  in  any  form.  They  showed  a  special 
agreement  with  Ritchie  in  relation  to  the  engraving,  and  a  failure 
on  his  part  to  perform  the  agreement,  whereby  the  defendant 
alleges  that  he  sustained  damages.  He  had  never  received  the 
engravings.  If  the  facts  stated  were  true,  then  he  had  a  good 
cause  of  action  against  Ritchie  for  damages  for  a  breach  of  the 


special  agreement,  but  Ritchie  had  no  cause  of  action  against 
him.  In  short,  the  very  facts  which  would  give  the  defendant  a 
cause  of  action  against  Ritchie  for  damages  for  a  breach  of  the 
agreement,  would  show  that  Ritchie  never  had  any  cause  of  ac- 
tion against  him,  and  there  would  be  nothing  out  of  which  to  re- 
coup his  damages.  Recoupment  always  implies  that  the  plaintiff 
had  a  cause  of  action^  but  the  defendant  alleges  that  ho  too  has  a 
cause  of  action  growing  out  of  a  breach  of  some  other  part  of  the 
contract  upon  which  the  action  is  founded,  or  for  some  other 
cause  connected  with  the  contract,  and  it  is  in  the  nature  of  a 
cross  action.  Under  the  former  system  of  pleading  the  defend- 
ant could  not  make  the  defence  by  a  special  plea  in  bar,  as  it 
was  a  rule  that  such  plea  must  state  facts  forming  a  bar  to  the 
action,  whereas  recoupment  in  its  very  nature  admitted  the  plain- 
tiff had  a  cause  of  action.  (Nichols  v.  Dusenbury,  2  Comst.,  284.) 
The  counter-claim  of  the  Code  is  undoubtedly  broader  and 
more  comprehensive  than  set-off  and  recoupment.  It  authorizes 
a  resort  by  the  defendant,  to  causes  of  action  by  way  of  defence, 
other  than  set-off  or  recoupment.  It  has  attempted,  however,  to 
limit  and  define  the  defendant's  rights.  It  clearly  authorizes  set- 
off and  recoupment,  and  I  had  no  doubt  they  were  authorized  by 
the  first  Code,  under  the  word  defence,  in  the  section  relating  to 
the  answer.  However  that  was,  it  is  clear  they  are  authorized  by 
the  amendments  of  1852,  and  something  more.  By  the  second 
subdivision  of  §  150,  in  an  action  arising  on  contract,  the  de- 
fendant may  avail  himself  by  way  of  defence  of  any  other  cause 
arising  on  contract,  and  existing  at  the  commencement  of  the 
action.  It  is  not  claimed  by  the  defendant  that  this  provision 
has  any  application  to  the  present  case.  It  is  claimed  that  the 
plaintiff,  as  assignee  of  the  demand,  too"k  it  subject  to  all  equities 
to  any  set-off  or  right  of  recoupment  which  the  defendant  had, 
and  this  claim  is  undoubtedly  well  founded.  As  we  have  seen, 
the  defendant  had  no  right  of  set-off,  recoupment,  or  cause  of 
action  against  this  plaintiff^  who  by  becoming  assignee  did  not 
subject  himself  to  a  cause  of  action  existing  against  his  assignor 


Sec.  4]  VASSEAR  v.  Livingston.  729 

so  as  to  have  judgment  against  him  for  damages.  If  the  pro- 
vision of  the  Code  just  cited,  should  be  construed  as  authorizing 
a  defendant,  when  sued  b}^  an  assignee  in  an  action  on  contract, 
to  avail  himself  of  any  other  cause  of  action  on  contract  against 
the  assignor,  so  far  as  to  satisfy  or  compensate  the  damages  in 
the  action  by  the  assignee  against  him,  it  would  not  benefit  the 
defendant  in  this  case.  Here  the  facts  stated  in  the  answer 
related  to  the  same  engagement  or  contract,  upon  which  the 
plaintiff's  action  was  founded,  and  if  the  plaintiff  had  a  good 
cause  of  action,  the  defendant  had  none.  If  the  plaintiff,  as 
assignee  of  Ritchie,  had  no  cause  of  action,  then  the  defendant 
had  no  cause  of  action  against  Ritchie,  which  he  could  use  against 
the  plaintiff.  In  short,  it  was  necessary  to  try  the  issue  joined 
by  the  denial  in  the  answer,  and  upon  the  trial  of  that  issue  all 
the  rights  of  the  defendant  in  this  action  could  be  protected. 
If  Ritchie  failed  to  perform  his  agreement  the  plaintiff  could 
not  recover,  and  the  defendant  then,  if  he  had  sustained  damages 
by  a  breach  of  the  agreement  by  Ritchie,  could  bring  his  action 
against  him.  The  facts  stated  in  the  ans\ver  did  not  constitute 
a  counter-claim,  and  no  reply  was  necessary  to  put  them  in  issue. 
No  error,  therefore,  was  committed  in  refusing  to  dismiss  the 
complaint.     *     *     * 

Judgment  affirmed. 


McADOW  V.  ROSS. 
53  Mo.  199.     [1873.] 

VoRiES,  Judge,  delivered  the  opinion  of  the  court. 

This  action  was  brought  to  enforce  a  mechanic's  lien.  The 
petition  charges,  that  the  defendant  Ross  is  indebted  to  plaintiff 
in  the  sum  of  $79.32,  for  materials  furnished  by  plaintiff  to  said 
Ross,  the  particulars  of  which  are  filed :  that  said  materials  were 
furnished  for  a  house  erected  under  a  contract  with  said  Ross, 
(describing  the  house  and  lot  on  which  it  is  situated) ;  that  said 
Ross  was  the  contractor  of  defendant  Smallwood  for  the  erection 
of  said  house,  for  which  the  materials  were  furnished,  and  that 
said  Smallwood  was  the  o\vner  and  proprietor  of  said  house  and 
lot.     *     *     * 

The  defendant  then,  for  a  further  answer  and  counter-claim, 


730  THE   ANSWER.  [ChAP.  IV, 

states,  ''that  on  the  29th  day  of  October,  1867,  he  and  said  D. 
M.  Ross  entered  into  a  contract  in  writing  which  is  herewith 
filed,  whereby  the  said  Ross  promised  and  agreed  to  build  for 
this  defendant  a  house  of  the  dimensions  in  said  contract  speci- 
fied, and  which  was  to  be  finished  by  the  25th  day  of  November, 
1867,  in  a  good  and  workmanlike  manner,  and  that  plaintiff 
guaranteed  in  writing,  that  said  Ross  should  perform  and  com- 
plete said  contract  according  to  its  said  terms,  and  which  is  the 
same  house  mentioned  in  the  petition,  and  which  guaranty  is 
herewith  filed ;  that  this  defendant  accepted  said  guaranty,  and 
plaintiff  had  due  notice  of  said  acceptance ;  that  said  Ross  did 
not  keep  nor  perform  his  said  contract,  but  made  breach  thereof, 
in  that  said  house  was  not  completed  on  said  25th  day  of  No- 
vember, 1867,  nor  until  one  month  afterwards,  whereby  defend- 
ant was  damaged  in  the  sum  of  fifty  dollars,  and  that  the  plaster- 
ing of  said  house  was  not  put  on  in  a  good  and  workmanlike 
manner,  nor  was  it  done  at  the  time  it  ought  to  have  been  done, 
but  on  the  contrary,  said  plastering  was  put  on  in  so  unskillful 
and  unworkmanlike  manner,  and  at  a  time  when  it  froze,  so  that 
all  of  it  fell  off,  and  defendant  was  compelled  to  and  did  employ 
other  persons  to  put  on  new  plastering,  at  a  great  cost,  to-wit: 
at  the  cost  and  expense  of  one  hundred  and  fifty  dollars,  by 
reason  whereof,  defendant  says  he  is  injured,  and  has  sustained 
damage  to  the  amount  of  two  hundred  dollars,  for  which  he  asks 
judgment." 

The  second  defence  or  counter-claim  set  up  by  the  answer  and 
above  copied,  was  on  the  motion  of  the  plaintiff  stricken  out. 
The  grounds  of  the  motion  to  strike  out  this  counter-claim  were, 
1st,  That  it  constituted  no  legal  defence  to  the  action,  and  was 
inconsistent  with  the  previous  defence  set  up  in  the  previous 
part  of  the  answer.  2nd.  The  liability  of  the  guarantor  is  con- 
tingent, and  cannot  be  pleaded  as  a  set-off.  3rd.  There  is  no 
mutuality  of  indebtedness  between  plaintiff  and  defendant  Small- 
wood. 

The  court  sustained  this  motion,  and  struck  out  from  the  record 
said  part  of  said  answer,  and  the  defendant  excepted. 

A  trial  was  afterwards  had  and  judgment  rendered  against  the 
defendant  Ross,  for  the  debt  named  in  the  petition,  and  subject- 
ing defendant  Smallwood's  house,  named  in  the  petition,  to  sale 
for  the  payment  of  the  judgment. 

The  defendant  Smallwood,  then  filed  his  motion  for  a  new 


Sec.  4]  m'adow  v.  ross.  731 

trial  for  the  following  reasons :  1st.  The  court  erred  in  striking 
out  part  of  defendant's  answer,  and  because  the  court  erred  in 
refusing  to  declare  the  law  to  be  as  asked  for  by  the  defendant. 

This  motion  being  overruled,  the  said  defendant  excepted  and 
has  appealed  to  this  court.     *     *     * 

It  is  next  insisted  by  the  respondent,  that  the  matter  set  up 
in  this  answer  as  a  counter-claim  fails  to  show  any  mutuality  of 
indebtedness  between  the  plaintiff  and  the  said  defendant,  and 
that  it  was,  therefore,  properly  stricken  out.  The  respondent 
seems  to  make  no  distinction  between  what  is  denominated  a  set- 
off under  our  statute,  and  a  counter-claim.  It  is  providecj  by  the 
first  section  of  Ch.  125,  Wag.  Stat.,  1273,  that  "If  any  two  or 
more  persons  are  mutually  indebted  in  any  manner  whatever, 
and  one  of  them  commence  an  action  against  the  other,  one  debt 
may  be  set-off  against  the  other,  although  such  debts  are  of  a 
different  nature."  Now  it  is  admitted,  that  this  statute  only 
permits  a  set-off  to  be  pleaded  where  there  are  mutual  debts,  and 
under  its  provisions  unliquidated  damages  could  not  be  set  off 
against  one  who  brought  suit  to  recover  on  a  demand  against 
the  other;  but  the  statute,  authorizing  counter-claims  to  be  set 
up  by  a  defendant,  is  very  different.  The  statute  in  such  case 
is  specific,  and  it  seems  that  but  little  room  is  left  to  misunder- 
stand its  provisions  or  meaning.  By  the  12th  and  13th  sections 
of  Ch.  5  of  the  statutes  of  this  state  (Wag.  Stat.,  1015,  1016), 
it  is  provided  as  follows:  "The  answer  of  the  defendant  shall 
contain:  First,  a  special  denial  of  each  material  allegation  of 
the  petition  controverted  by  the  defendant,  or  of  any  knowledge 
or  information  thereof  sufficient  to  form  a  belief ;  second,  a  state- 
ment of  any  new  matter  constituting  a  defence  or  counter-claim, 
in  ordinary  and  concise  language  without  repetition. ' ' 

Second — "The  counter-claim  mentioned  in  the  last  section 
must  be  one  existing  in  favor  of  the  defendant  and  against  a 
plaintiff,  between  whom  a  several  judgment  might  be  had  in  the 
action,  and  arising  out  of  the  following  causes  of  action :  First, 
a  cause  of  action  arising  out  of  the  contract  or  transaction  set 
forth  in  the  petition  as  the  foundation  of  the  plaintiff's  claim, 
or  connected  with  the  subject  of  the  action ;  Second,  in  an  action 
arising  on  contract,  any  other  cause  of  action  arising  also  on 
contract,  and  existing  at  the  commencement  of  the  action."  By 
these  two  sections  it  will  be  seen,  that  it  is  not  required  that  a 
counter-claim  should  be  a  liquidated  demand,  nor  is  it  required 


732  THE  ANSWER.  [ChAP,  IV. 

that  there  should  be  any  mutual  indebtedness  existing  between 
the  parties,  but  if  the  cause  of  action  shall  arise  out  of  the  con- 
tract, or  transaction  set  forth  in  the  petition  as  the  foundation  of 
the  plaintiff's  claim,  or  is  connected  with  the  subject  of  the  ac- 
tion, it  will  be  a  good  counter-claim,  whether  the  damages  claimed 
are  liquidated  or  not.     The  first  question  to  be  considered  is, 
could  a  several  judgment  be  rendered  upon  this  counter-claim 
against  the  plaintiff  in  this  case,  and  in  favor  of  the  defendant. 
It  requires  no  argument  to  show  that  the  defendant  could  have 
a  several  judgment  against  the  plaintiff  on  this  guaranty  if  his 
case  were  made  out  by  evidence.     There  is  the  breach  of  this 
guaranty,  set  up  by  the  defendant  as  a  counter-claim  connected 
with  the  subject  of  the  action.    The  subject  of  the  action,  so  far 
as  it  concerns  the  plaintiff  and  the  defendant  Ross,  is  the  material 
furnished  to  Ross,  to  recover  for  which  the  suit  is  brought ;  but 
as  between  plaintiff  and  defendant  Smallwood,  the  subject  of  the 
action  is  the  lien  attempted  to  be  enforced  against  Smallwood 's 
house,  growing  out  of  the  fact  that  the  plaintiff  has  furnished 
material,  which  has  been  used  in  the  building  of  the  house,  and 
the  very  house  that  the  plaintiff  has  guaranteed  shall  be  well 
built  and  constructed  by  a  time  named  in  the  contract  guaran- 
teed by  the  plaintiff.     Now  the  plaintiff  has  bound  himself  by 
his  contract  of  guaranty,  that  this  house  shall  be  completed  by 
the  25th  of  November,  in  a  good  and  workmanlike  manner  and 
has  furnished  part  of  the  material  to  be  used  in  the  erection  of 
the  house ;  has  sued  for  this  material ;  is  asking  for  a  judgment 
authorizing  the  sale  of  the  house,  which  he  agreed  should  be 
completed,  but  is  not;  and  shall  it  be  said  that  this  defendant 
must  have  his  house  sold  to  pay  for  the  lumber  that  has  gone 
into  its  construction,  and  afterwards  bring  an  action  against  the 
plaintiff  to  recover  damages  for  the  failure  to  complete  the  very 
house  sold  by  plaintiff?    It  seems  to  me  that  this  is  one  of  the 
cases  intended  to  be  covered  by  the  language  of  the  law,  that 
is,  this  counter-claim  is  "connected  with  the  subject  of  the  ac- 
tion."    As  before  stated,  the  subject  of  the  action,  as  it  aft'ects 
Smallwood,  is  the  material  furnished  by  plaintiff,  and  used  in 
the  erection  of  the  house  belonging  to  Smallwood,  which  creates 
a  lien  on  the  house,  in  the  erection  of  which  the  material  was 
used.     The  counter-claim  grows  out  of  the  failure  to  properly 
erect  and  finish  the  very  house,  in  which  the  material  was  used, 
for  which  the  lien  is  attempted  to  be  enforced.     Hence,  while 


Sec.  4]  m'adow  v.  ross.  733 

the  counter-claim  does  not  arise  out  of  the  contract,  or  transac- 
tion, set  forth  in  the  petition  as  the  ground  of  action  as  against 
the  defendant  Ross,  it  is  connected  with  the  subject  of  the  action, 
so  far  as  it  is  attempted  to  sell  the  house  by  virtue  of  the  me- 
chanic's lien.  (Jones  v.  Moore,  42  Mo.,  413.)  In  the  case  here 
referred  to.  Judge  Holmes,  in  delivering  the  opinion  of  the  Court, 
refers  to  Tiffany  &  Smith,  New  York  Practice,  for  a  definition 
of  what  constitutes  a  counter-claim,  under  a  statute  in  the  exact 
language  of  our  statute  on  the  same  subject.  It  is  there  stated, 
that  a  counter-claim  "may  be  set  up,  where  it  is  a  cause  of  action 
arising  out  of  the  contract,  or  transaction,  set  forth  in  the  com- 
plaint as  the  foundation  of  the  plaintiff's  claim,  or  is  connected 
with  the  subject  of  the  action,  or  in  case  the  cause  of  action  in 
the  complaint  arises  on  contract,  then  any  other  cause  of  action, 
also  arising  on  contract,  and  existing  at  the  commencement  of 
the  action  in  favor  of  the  defendant  and  against  the  plaintiff, 
may  become  the  subject  of  a  counter-claim."  This  to  my  mind 
is  the  only  proper  construction  of  the  statute.  The  first  clause, 
in  the  section  referred  to,  embraces  cases  where  the  counter- 
claim arises  out  of  the  contract  or  transaction  set  forth  in  the 
petition,  or  where  the  counter-claim  is  connected  with  the  subject 
of  the  action ;  in  such  cases,  it  makes  no  difference  whether  the 
damages  claimed  by  the  counter-claim  are  liquidated  damages  or 
not.  If  the  claim  be  for  a  debt  or  damages  growing  out  of  the 
subject  of  the  action,  or  arise  out  of  the  transaction  set  forth  in 
the  petition  as  a  ground  of  action,  it  is  enough.  The  second 
clause  of  the  statute  provides  for  cases  where  the  plaintiff's 
action  arises  exclusively  upon  a  contract,  in  which  case  a  cause 
of  action  arising  also  on  contract  in  favor  of  the  defendant  and 
against  the  plaintiff,  which  existed  at  the  commencement  of  the 
action,  may  be  set  up  as  a  counter-claim  in  the  action.  It  is  true, 
that  the  learned  judge  in  his  opinion  in  the  case  of  Jones  v. 
Moore,  above  referred  to,  seems  in  his  argument  to  hold,  that  the 
cause  of  action  must  not  only  arise  out  of  contract  to  be  set  up 
as  a  counter-claim  in  an  action  founded  upon  contract,  but  that 
it  must  also  groAV  out  of  the  same  transaction;  but  it  was  not 
necessary  to  consider  that  point  in  the  case  then  under  con- 
sideration, and  the  learned  judge  evidently  inadvertently  con- 
founded the  two  clauses  in  the  section  of  the  statute  referred  to. 
The  statute  is  plainly  the  other  way,  and  has  been  so  construed 
by  the  courts  of  New  York,  where  the  construction  of  these 


734  THE   ANSWER.  [ChAP.  IV. 

clauses  of  the  statute  seems  to  have  been  well  considered.  (Tiff. 
&  Sm.  N.  Y.  Pr.,  378,  and  cases  there  cited ;  Curtis  v.  Barnes,  30 
Barb.  N.  Y.  R.  225.)  In  this  last  case  the  parties  mutually  sub- 
mitted a  matter  to  arbitration,  and  bonds  to  abide  the  decision 
of  the  arbitrators  were  mutually  executed  and  delivered,  and  af- 
ter the  hearing  had  commenced,  but  before  the  same  had  been 
completed,  one  of  the  parties  revoked  the  submission,  and  brought 
an  action  against  the  other  party  to  recover  the  claim  so  sub- 
mitted. It  was  held,  that  in  such  case  the  defendant  may  re- 
cover, by  way  of  counter-claim,  the  damages  sustained  by  him  by 
reason  of  the  revocation  of  the  submission.  It  will  be  seen  that 
the  damages  in  the  case  above  stated  were  wholly  unliquidated, 
but  were  still  admitted  as  a  counter-claim.  The  cases  referred  to 
by  the  plaintiff  are  all  cases  where  the  matter  set  up  by  the 
defendant  had  been  set  up  as  an  oft'-set,  or  was  wholly  considered 
under  the  law  concerning  off-set,  which  is  very  different  from 
the  law  authorizing  a  counter-claim.  The  law,  authorizing  one 
debt  to  be  set  off  against  another,  requires  the  debts  so  set  off 
to  be  mutual  debts  existing  between  the  parties,  which  excludes 
the  idea  of  unliquidated  damages,  and  is  altogether  different 
from  a  counter-claim,  and  each  defence  being  governed  by  the 
particular  statutes  relating  thereto.  (Spencer  v.  Babcock,  22 
Barb.  N.  Y.  Rep.  326,  above  referred  to.) 

In  the  case  under  consideration,  if  the  action  against  defendant 
Smallwood  is  to  be  considered  an  action  founded  on  the  con- 
tract by  which  the  lumber  and  material  was  sold  to  Ross,  then 
Smallwood  can  by  the  statute  set  up  as  a  counter-claim  any 
cause  of  action  also  growing  out  of  a  contract,  which  existed  at 
the  commencement  of  the  action,  in  his  favor  and  against  the 
plaintiff.  If  on  the  other  hand  the  cause  of  action,  an  against 
defendant  Smallwood,  grows  out  of  the  remedy  given  plaintiff  by 
the  statute  to  enforce  a  lien  against  the  property,  because  the 
plaintiff  has  furnished  material,  which  has  been  used  in  the 
erection  of,  and  now  constitutes  a  part  of,  Smallwood 's  house, 
then  as  the  counter-claim  is  for  a  breach  of  the  contract  to  build 
or  erect  the  same  house,  it  is  connected  with  the  subject  of  the 
action,  and  in  either  case  may  be  pleaded  as  a  counter-claim,  or 
defence  as  counter-claim  to  the  action. 

The  counter-claim  in  this  case  was  not  pleaded  with  as  much 
certainty  and  particularity  of  averment  as  is  desirable  in  techni- 
cal pleadings,  but  we  think  it  is  in  substance  good,  and  ought  not 


Sec.  4]  m'adow  v.  ross.  735 

to  have  been  stricken  out.     The  judgment  will  therefore  be  re- 
versed. 

Judges  Adams  and  Napton  not  sitting,  the  other  judges  con- 
curring, the  judgment  will  be  reversed  and  the  cause  remanded. 


GILLESPIE  V.  TORRANCE. 

35  N.  Y.  306.     [1862.] 

Action  upon  a  promissory  note  against  the  indorser  only. 
Defence  that  the  indorsement  was  for  the  accommodation  of  the 
maker ;  that  the  note  was  one  of  several  given  for  oak  timber  sold 
to  the  maker  by  the  plaintiffs ;  that  the  timber  was  a  raft  in  the 
Hudson  river,  opposite  the  city  of  New  York,  and  that,  on  making 
the  sale,  the  plaintiffs  produced  certificates  of  inspection  showing 
that  there  were  29,441  feet  of  first  quality  oak,  for  which  Van 
Pelt,  the  maker  of  the  notes,  agreed  to  pay  27 14  cents  per  foot, 
and  5,523  feet  of  second  quality  or  refuse  oak,  for  which  Van 
Pelt  agreed  to  pay  13%  cents  per  foot;  that,  by  the  usage  of  the 
timber  trade  in  New  York,  the  seller  is  deemed  to  warrant  that 
the  timber  sold  corresponds  in  quantity  and  quality  with  the 
description  in  such  inspection  certificates;  that  Van  Pelt  gave 
his  notes,  indorsed  by  the  defendant,  for  various  sums,  amounting 
in  the  aggregate  to  $9,000,  the  price  of  the  timber  as  computed 
from  the  inspection  certificates,  and  all  of  which  notes  had  been 
paid  except  the  one  in  suit ;  that  after  the  delivery  of  the  timber 
it  was  discovered  that  the  inspection  certificates  were  erroneous 
in  this,  that  of  the  timber  of  the  first  quality,  there  was  15,000 
feet  less  than  the  certificate  stated,  and  an  equal  excess  in  the 
refuse  timber;  that  if  the  prices  had  been  correctly  computed 
according  to  the  fact,  instead  of  being  computed  according  to  the 
certificate,  it  would  have  amounted  to  less  than  $5,000 ;  that  the 
plaintiffs  had,  therefore,  been  overpaid,  and  there  was  no  con- 
sideration for  the  note  in  suit.  On  the  trial,  the  judge,  under 
exception  by  the  defendant,  excluded  evidence  as  to  the  quantity 
of  timber  of  the  different  qualities ;  declined  to  permit  an  amend- 
ment of  the  answer  alleging  an  express  warranty ;  and  excluded 


736  THE   ANSWER.  [ChAP.  IV. 

evidence  of  the  usajje  set  up  in  the  answer,  making  a  sale  by 
certificate  equivalent  to  a  warranty.  The  other  facts  stated  in 
the  answer  were  substantially  proved  or  admitted.  The  plaintiffs 
had  a  verdict  and  judgment,  which  having  been  affirmed  at  gen- 
eral term,  the  defendant  appealed  to  this  court. 

Selden,  J.  The  defence  in  this  case  is  not  founded  on  a 
failure  of  consideration  of  the  note,  otherwise  than  by  a  defect 
in  the  quality  of  the  timber,  for  which  it  was  given.  That  being 
so,  if  there  was  neither  warranty  nor  fraud  in  the  sale  of  the 
timber,  the  defect  in  quality  constitutes  no  defence.  (Seixas  v. 
Woods,  2  Gaines,  48 ;  Sweet  v.  Colgate,  20  John.,  196 ;  Welsh  v. 
Carter,  1  Wend.  185 ;  Johnson  v.  Titus,  2  Hill.  606.)  The  answer 
does  not  allege  fraud  in  the  transaction,  and  unless  it  shows  a 
warranty  of  the  quality  of  the  timber,  it  presents  no  defence  to 
the  note,  either  partial  or  total.  The  argument  of  the  appellant's 
counsel,  to  maintain  the  position  that  the  defence  rested  upon  a 
failure  of  consideration,  and  not  upon  a  claim  for  damages  on 
a  breach  of  warranty,  is  very  ingenious ;  but  the  answer  and  the 
proof  show  that  all  the  timber  contracted  to  be  delivered  to  Van 
Pelt,  and  for  which  the  notes  were  given,  was  in  fact  delivered, 
and  the  real  ground  of  complaint  is,  that  a  much  larger  propor- 
tion of  it  than  was  shown  by  the  inspector's  certificates,  upon 
the  faith  of  which,  the  purchase  was  made,  proved  to  be  of 
inferior  quality.  The  law  being  well  established  that  such  de- 
fect of  qualityj  in  the  absence  of  fraud  or  warranty,  constitutes 
no  defence  to  the  note,  or  to  any  part  of  it,  and  there  being  no 
pretence  of  fraud,  it  follows  that  the  defence,  if  there  is  any, 
rests  upon  a  breach  of  warranty. 

The  question  then  arises,  whether  the  plaintiff,  an  accommoda- 
tion indorser  upon  a  note  given  by  Van  Pelt  to  the  plaintiffs  for 
the  timber,  can  avail  himself  of  a  breach  of  the  contract  of  war- 
ranty in  regard  to  the  quality  of  the  timber,  made  by  the  plain- 
tiffs to  Van  Pelt,  on  the  sale  to  him.  To  decide  this  question,  it 
is  necessary  to  ascertain  the  ground  upon  which  such  defences, 
by  way  of  recoupment,  as  they  were  denominated  prior  to  the 
adoption  of  the  Code,  now,  partially,  if  not  wholly,  merged  in 
the  much  broader  term,  counter-claim,  were  admitted.  If  we 
regard  such  defences  as  resting  upon  a  failure  of  the  considera- 
tion of  the  contract  on  which  the  plaintiff's  action  is  founded, 
then  unquestionably  the  defendant  could  avail  himself  of  the 
breach  of  warranty  in  this  case,  because  an  indorser  or  surety 


Sec.  4]  gillespie  v.  torrance.  737 

may  always,  where  the  contract  has  uot  been  assigned,  show  a 
failure,  partial  or  total,  of  consideration  of  his  principal's  con- 
tract which  he  is  called  upon  to  perform.  But  if  such  defences 
are  regarded  as  the  setting-off  of  distinct  causes  of  action,  one 
against  the  other,  then  it  is  clear,  as  will  be  shown  hereafter, 
that  this  defendant  could  not  avail  himself  of  such  defence. 

The  subject  of  the  precise  ground  on  which  a  defendant  is 
allowed  to  reduce  a  recovery  against  him,  in  an  action  upon  a 
contract,  by  alleging  and  proving  fraud  or  breach  of  warranty — 
whether  the  contract,  where  there  is  fraud,  is  regarded  as  de- 
stroyed, and  the  recovery  had  on  a  quantum  meruit,  or  whether 
the  reduction  of  the  plaintiff's  claim  rests  upon  a  partial  failure 
of  consideration,  or  upon  the  setting-off  of  distinct  claims  against 
each  other — has  often  been  discussed,  but  without  any  general 
concurrence  of  opinion  on  the  question.  (Reab  v.  McAllister,  4 
Wend.  90,  et  seq. ;  S.  C.  in  error,  8  id.,  109 ;  Batterman  v.  Pierce, 
3  Hill,  171,  177;  Ives  v.  Van  Epps,  22  Wend.  155;  Nichols  v. 
Dusenbury,  2  Comst.  286;  Van  Epps  v.  Harrison,  5  Hill,  66; 
Barber  v.  Rose,  id.,  78;  Boston  v.  Butler,  7  East,  479;  Withers 
V.  Greene,  9  How.  U.  S.,  213.) 

A  careful  examination  of  the  subject,  I  think,  must  lead  to 
the  conclusion,  that  wherever  recoupment,  strictly  such,  is  al- 
lowed, distinct  causes  of  actions  are  set-off  against  each  other. 
This  would  seem  to  follow  from  the  right  of  election,  which  all 
the  cases  admit  the  defendant  has,  to  set  up  his  claim  for  damages 
by  way  of  defence,  or  to  resort  to  a  cross-action  to  recover  them. 
(Ives  V,  Van  Epps,  22  Wend.  157;  Batterman  v.  Pierce,  3  HiU, 
171 ;  Britton  v.  Turner,  6  N.  H.  481 ;  Halsey  v.  Carter,  1  Duer, 
667;  Barber  v.  Rose,  5  Hill,  81;  Stever  v.  Lamoure,  Lalor's 
Supp.,  352,  note  a). 

In  many  cases  the  defendant's  damages  would  exceed  the 
amount  of  the  plaintiff's  claim,  whichv shows  conclusively  that 
such  damages  do  not  rest  upon  a  mere  failure  of  consideration. 
Where  there  is  fraud,  the  party  deceived,  on  discovering  the 
fraud,  may  rescind  the  contract ;  but  if  he  does  not  do  that,  the 
contract  on  his  part  remains  entire,  not  broken  and  not  modified, 
and  he  is  bound  to  perform  it  fully  according  to  its  terms:  he 
has,  however,  arising  from  the  fraud,  a  distinct  cause  of  action, 
the  amount  of  which  he  may  set  off  against  any  liability  on  his 
part  growing  out  of  the  transaction  in  which  the  fraud  was  per- 
petrated. As  was  said  by  Bronson,  J.j  in  Van  Epps  v.  Harrison : 

47 


738  THE   ANSWER.  [ChAP.  IV. 

"When  sued  for  the  price,  the  vendee  may  in  general  recmp 
damages;  but  while  he  retains  the  property  he  cannot  treat  the 
contract  as  wholly  void,  and  refuse  to  pay  anything.  By  retain- 
ing the  property,  he  affirms  the  validity  of  the  contract,  and  can 
be  entitled  to  nothing  more  than  the  damages  which  he  has  sus- 
tained by  reason  of  the  fraud. "  The  same  principle  is  applicable 
to  cases  of  warranty,  except  that  the  breach  of  warranty  gives 
no  right  to  rescind,  unless  there  is  an  express  contract  to  that 
effect.  (Street  v.  Blay,  2  Bam  &  Ad.,  456;  Voorhees  v.  Earl,  2 
Hill,  288 ;  Gary  v.  Gruman,  4  id.,  625 ;  Muller  v.  Eno,  14  N.  Y., 
597;  Thornton  v.  Winn,  12  Wheat.,  183;  Lattin  v.  Davis,  Lalor's 
Supp.,  16.)  In  ordinary  cases  of  breach  of  warranty,  therefore, 
both  contracts  remain  binding  to  their  full  extent,  and  where 
recoupment  is  allowed,  damages  for  a  breach  on  one  side  are  set 
off  against  like  damages  on  the  other  side.  The  "cross-claims 
arising  out  of  the  same  transaction  compensate  one  another,  and 
the  balance  only  is  recovered."  (8  Wend.,  115;  22  id.,  156;  3 
Hill,  174;  2  Comst.  286.) 

It  has  always  been  optional,  as  is  suggested  above,  since  the 
doctrine  of  recoupment  has  gained  a  foothold  in  the  courts,  with 
a  party  who  has  sustained  damages  by  fraud  or  breach  of  war- 
ranty in  the  purchase  of  the  goods,  when  sued  for  their  price, 
to  set  off  or  recoup  such  damages  in  that  action,  or  to  reserve 
his  claim  for  a  cross-action;  and  when  lie  elected  to  recoup  he 
could  not,  under  the  Revised  Statutes,  have  a  balance  certified 
in  his  favor,  nor  could  he  maintain  a  subsequent  action  for  such 
balance.  (Sickles  v.  Pattison,  14  Wend.,  257;  Batterman  v. 
Pierce,  3  Hill,  171;  Wilder  v.  Case,  16  Wend.,  583;  Stever  v. 
Lamoure,  Lalor's  Supp.,  352,  note  a;  Britton  v.  Turner,  6  N.  H., 
481.) 

Under  the  Code  of  Procedure,  doubtless  a  balance  might  be 
recovered.  (Code,  §§150-274;  Ogden  v.  Coddington,  2  E.  D. 
Smith,  317)  ;  but  the  right  of  election  to  set  up  a  counter-claim 
in  defence,  or  to  bring  a  cross-action  for  it,  still  exists.  (Halsey 
V.  Carter,  6  Duer.,  667;  Welch  v.  Hazleton,  14  How.  Pr.  97.) 

Now  it  is  not  easy  to  reconcile  with  these  established  principles, 
the  right  of  the  defendant  in  this  suit  to  avail  himself  of  the 
claim  which  Van  Pelt  may  have  against  the  plaintiffs  on  a  breach 
of  warranty.  1.  Such  damages  constitute  a  counter-claim,  and 
not  a  mere  failure  of  consideration,  and  not  being  due  to  the 
defendant,  cannot  be  claimed  by  him.     (Code,  §150;  Lemon  v. 


Sec.  4]  gillespie  v.  torrance.  739 

Trull,  13  How.  Pr.,  248;  16  id.,  576,  note.)  2.  Van  Pelt  has  a 
right  of  election  whether  the  damages  shall  be  claimed  by  way 
of  recoupment  in  the  suit  on  the  note,  or  reserved  for  a  cross- 
action.  The  defendant  cannot  make  this  election  for  him.  3.  If 
the  defendant  has  a  right  to  set  up  the  counter-claim,  and  have 
it  allowed  in  this  action,  it  must  bar  any  future  action  by  Van 
Pelt  for  the  breach  of  warranty;  and  as  no  balance  could  be 
found  in  defendant's  favor,  he  might  thus  bar  a  large  claim  in 
canceling  a  small  one.  If  the  right  exists  in  this  case,  it  would 
equally  exist  if  the  note  was  but  $100  instead  of  $1,800.  4.  Sup- 
posing the  other  notes  given  for  the  timber  to  have  been  indorsed 
by  different  persons,  for  the  accommodation  of  Van  Pelt,  and 
all  to  remain  unpaid,  each  of  the  indorsers  would  have  the  same 
rights  as  the  defendant.  If  they  were  to  set  up  the  same  defence, 
how  would  the  conflicting  claims  be  reconciled  ? 

In  the  case  which  was  shown  on  the  trial,  there  would  seem  to 
be  a  strong  equity  in  favor  of  the  defendant  to  have  the  note 
canceled  or  reduced,  by  applying  towards  its  satisfaction  the 
damages  which  appear  to  be  due  to  Van  Pelt  for  the  breach  of 
warranty.  It  is,  however,  an  equity,  in  which  Van  Pelt  is  in- 
terested to  as  great,  and  possibly  to  a  greater,  extent  than  the 
defendant,  and  cannot  be  disposed  of  without  having  him  before 
the  court,  so  that  his  rights,  as  well  as  those  of  the  defendant, 
may  be  protected.  That  remedy  may  be  open  to  the  defendant 
still,  notwithstanding  the  judgment ;  especially  if  the  insolvency 
of  the  parties  renders  that  course  necessary  for  his  protection. 
(14  Johns.,  63,  17  id.,  389;  2  Cow.,  261;  2  Paige,  581;  6  Dana, 
32:  8  id.,  164;  2  Story's  Eq.  Jur.,  §§1446,  a.  1437.)  My  con- 
clusion is,  that  the  court  below  was  right  in  holding  that  the  de-^ 
fendant  could  not  set  up  the  breach  of  warranty  in  defence,  par- 
tial  or  total,  to  the  suit  on  the  note;  and  as  the  warranty  pre- 
sented the  only  ground  on  which  there  could  be  a  claim  of  defence^ 
under  the  answer,  there  is  no  necessity  for  considering  the  other 
questions  presented  in  the  case. 

All  the  judges  concurring. 

Judgment  affirmed. 


740  THE    ANSWER.  [ChAP.  IV. 

RITCHIE  V.  HAYWARD.    * 

71  Mo.  560.      [1880.] 

Hough,  3r.  This  was  a  suit  to  recover  the  value  of  600  gunny 
sacks  alleged  to  have  been  wrongfully  converted  by  the  defend- 
ants to  their  own  use.  The  defendants  admitted  that  the  sacks 
came  into  their  possession,  and  that  they  had  not  returned  the 
same,  and  set  up  by  way  of  counter-claim  that  the  plaintiffs,  at 
the  time  named  in  the  petition,  agreed  to  sell  and  deliver  to  the 
defendants,  on  board  a  steamboat  at  Muscatine,  Iowa,  for  trans- 
portation to  Hannibal,  Mo.,  which  was  then  the  defendants'  place 
of  business,  1,0461/2  bushels  of  choice  peach-blow  potatoes  in 
gunny  sacks,  at  the  price  of  sixty  cents  per  bushel,  the  said  sacks 
to  be  returned  by  the  defendants  to  the  plaintiffs;  that,  in  con- 
sideration of  said  agreement,  and  relying  upon  the  honesty  and 
good  faith  of  the  plaintiffs,  the.  defendants  then  and  there  paid 
to  the  plaintiffs,  in  advance,  the  sum  agreed  to  be  paid  for  said 
potatoes,  to-wit:  $627.90;  that  the  potatoes  delivered  by  the 
plaintiffs  under  the  said  contract  were  much  inferior  in  quality 
to  the  potatoes  paid  for,  and  agreed  to  be  delivered,  and  were 
delivered  in  the  same  sacks,  to  recover  the  value  of  which  the 
present  suit  was  brought;  that,  by  reason  of  the  failure  of  the 
plaintiffs  to  comply  with  their  contract,  the  defendants  had 
been  damaged  in  the  sum  of  $141,  for  which  sum  they  prayed 
judgment. 

That  portion  of  the  defendants'  answer  setting  up  a  counter- 
claim was,  on  motion,  stricken  out  by  the  court,  on  the  ground 
that  a  counter-claim  founded  upon  a  contract  could  not  be 
pleaded  to  an  action  founded  on  a  tort.  This  ruling  of  the  court 
has  been  assigned  as  error.  The  counter-claim  allowed  by  the 
statute  miLst  be  one  existing  in  favor  of  the  defendant  and  against 
the  plaintiff,  between  whom  a  several  judgment  might  be  had 
in  the  action,  and  arising  out  of  one  of  the  following  causes  of 
action:  First,  a  cause  of  action  arising  out  of  the  contract  or 
transaction  set  forth  in  the  petition  as  the  foundation  of  the 
plaintiff's  claim,  or  connected  with  the  subject  of  the  action; 
second,  in  an  action  arising  on  contract,  any  other  cause  of 
action  arising  also  on  contract  and  existing  at  the  commence- 
ment of  the  action.    R.  S.  §  3522. 


Sec.  4]  kitchie  v.  haywaed.  741 

The  counter-claim  pleaded  by  the  defendants,  if  it  be  such  as 
the  statute  recognizes,  must  fall  within  the  first  class.  If  the 
facts  stated  by  the  defendants  be  true,  they  certainly  have  a 
cause  of  action  against  the  plaintiffs.  It  is  not,  however,  a  cause 
of  action  arising  out  of  any  contract  set  forth  in  the  petition,  for 
no  contract  is  therein  set  forth.  The  facts  set  forth  in  the  peti- 
tion are  that  the  defendants  came  into  the  possession  of  certain 
sacks  belonging  to  the  plaintiffs  and  wrongfully  converted  them 
to  their  own  use.  These  facts  constitute  in  a  legal  sense  a  ' '  trans- 
action," which  is  a  more  comprehensive  term  than  "contract." 
Xenia  Bank  v.  Lee,  7  Abb.  Pr.  372.  The  details  of  the  transaction, 
the  evidential  facts,  are  not  stated,  but  the  ultimate  facts  only, 
those  which  will  entitle  the  plaintiffs  to  relief,  when  established 
by  other  facts  proved  at  the  trial.  It  is  plain,  however,  that  the 
word  "transaction"  as  employed  in  the  code  cannot  be  restricted 
to  the  simple  statement  of  the  wrong  complained  of  by  the  plain- 
tiff, for  it  would  seem  to  be  impossible  that  a  cause  of  action  could 
accrue  to  the  defendant  out  of  an  injury  inflicted  by  him  upon 
the  plaintiff.  It  must  be  held  to  include,  therefore,  all  the  facts 
and  circumstances  out  of  which  the  injury  complained  of  by 
him  arose,  and  if  these  facts  and  circumstances  also  furnished 
to  the  defendant  a  ground  of  complaint,  or  cause  of  action, 
against  the  plaintiff,  the  defendant  will  be  entitled  to  present 
such  cause  of  action  as  a  counter-claim,  showing  by  proper  aver- 
ments that  it  is  a  part  of  the  same  transaction  which  is  made 
the  foundation  of  the  plaintiff's  claim.  In  this  view  of  the  case, 
it  is  immaterial  what  form  of  action  is  adopted  by  the  plaintiff. 
As  is  said  by  Mr.  Pomeroy  in  his  treatise  on  remedies,  "When- 
ever the  facts  are  such  that  an  election  is  given  to  the  plaintiff 
to  sue  in  form  either  for  a  tort  or  on  contract,  and  if  he  sues  on 
contract  the  defendant  may  counter-claim  damages  for  the 
breach  of  that  contract,  the  same  counter-claim  may  also  be  in- 
terposed when  the  suit  is  in  the  form  for  the  tort;  the  facts 
being  exactly  the  same  in  both  phases  of  the  action,  the  counter- 
claim would  clearly  arise  out  of  the  real  transaction  which  was 
the  foundation  of  the  plaintiff's  demand. "  §788.  Had  the  plain- 
tiffs sued  on  the  contract  set  up  by  the  defendants,  no  possible 
objection  could  have  been  made  to  the  defendants'  counter-claim. 
The  statute,  in  our  opinion,  preserves  their  right  to  set  it  up, 
although  the  plaintiffs  have  elected  to  sue  for  a  conversion  of  the 
sacks,  and  not  for  a  breach  of  the  contract  to  return  them.     Vide 


742  THE   ANSWER.  [ChAP.  IV. 

McAdow  V.  Ross,  53  Mo.  199.     The  judgment  will  be  reversed, 
and  the  cause  remanded.    The  other  judges  concur. 


DEITRICH  V.  KOCH. 

35  Wis.  618.     [1874.] 

Lyon,  J. :  The  plaintiff  seeks  by  this  action  to  procure  the  dis- 
charge of  two  certain  judgments  recovered  against  him  in  the 
year  1863,  and  he  states  in  his  complaint  the  facts  which  he 
claims  entitle  him  to  relief.  The  portion  of  the  answer  demurred 
to  does  not  controvert  the  right  of  the  plaintiff  to  have  the  judg- 
ment discharged.  The  allegations  thereof  relate  exclusively  to 
the  invalidity  of  the  deed  of  May  9th,  1870,  which  is  the  subject 
of  the  counter-claim  contained  in  the  answer.  This  portion  of 
the  answer  is  pleaded  both  as  a  defence  and  a  counter-claim,  and 
is  demurred  to  as  not  stating  a  defence  to  the  action  or  a  good 
cause  of  action  by  way  of  counter-claim. 

It  is  very  clear  that,  as  distinguished  from  a  counter-claim,  the 
portion  of  the  answer  demurred  to  fails  to  state  facts  constituting 
a  defence  to  the  action.  Conceding,  for  the  purposes  of  the  case, 
that,  were  an  action  brought  by  the  other  heirs  of  Carl  and  Mar- 
garethe  Deitrich  against  the  plaintiff  to  annul  the  deed  of  May 
9,  1870,  the  facts  stated  in  the  answer  are  sufficient  to  entitle  the 
plaintiffs  in  such  action  to  the  relief  demanded,  we  are  brought 
to  consider  whether  such  cause  of  action  is  a  proper  counter- 
claim to  this  action.  If  it  is  not,  the  answer  is  demurrable ;  for 
a  demurrer  lies  to  an  answer  containing  a  counter-claim,  when  it 
appears  upon  its  face  that  it  does  not  constitute  a  counter-claim 
to  the  action.    R.  S.,  ch.  125,  Sec.  16.     (Tay.  Stats.,  1441.) 

The  term  counter-claim,  of  itself,  imports  a  claim  opposed  to, 
or  which  qualifies,  or  at  least  in  some  degree  affects,  the  plain- 
tiff's cause  of  action.  It  has  been  held  in  New  York  that  a 
counter-claim,  to  be  valid,  must  to  some  extent  impair,  affect  or 
qualify  the  plaintiff's  right  to  the  relief  to  which  he  would  other- 
wise be  entitled  by  his  action.  In  Matton  v.  Baker,  24  How.  Pr. 
R.,  329,  the  court  says:  "A  counter-claim,  to  be  available  to  a 
party,  must  afford  to  him  protection  in  some  way  against  the 
plaintiff's  demand  for  judgment,  either  in  whole  or  in  part.    It 


Sec.  4]  deitrich  v.  koch.  743 

must,  therefore,  consist  in  a  set-off  or  claim  by  way  of  recoup- 
ment, or  be  in  some  way  connected  with  the  subject  of  the  action 
stated  in  the  complaint.  It  must  present  an  answer  to  the  plain- 
tiff's demand  for  relief,  must  show  that  he  is  not  entitled,  ac- 
cording to  law,  or  under  the  application  of  just  principles  oi 
equity,  to  judgment  in  his  favor,  or  to  the  extent  claimed  in  the 
complaint."  (P.  332.)  See  also  Pattison  v.  Richards,  22  Barb.,. 
143 :  and  National  Fire  Ins.  Co.  v.  McKay,  21  N.  Y.,  191.  In  the 
latter  case,  Judge  Comstock  uses  the  following  language:  "I 
apprehend  that  a  counter-claim,  when  established,  must  in  some 
way  qualify  or  must  defeat,  the  judgment  to  which  a  plaintiff' 
is  otherwise  entitled."  (P.  196.)  That  the  New  York  courts 
have  held  correctly  on  this  .subject,  we  entertain  no  doubt  what- 
ever. 

We  are  unable  to  perceive  that  the  counter-claim  here  inter- 
posed, if  established,  can  qualify  or  in  any  manner  affect  the 
plaintiff's  cause  of  action.  Should  the  defendants  succeed  in 
proving  that  the  deed  of  May  9,  1870,  ought  to  be  annulled,  this 
fact,  of  itself,  will  not  affect  the  plaintiff's  cause  of  action. 
Upon  proper  proofs,  he  will  still  be  entitled  to  have  the  judg- 
ments against  him  discharged.  It  necessarily  follows  that  the 
cause  of  action  stated  in  the  answer  is  not  available  to  the  de- 
fendants as  a  counter-claim  to  this  action.  We  conclude  that  the 
demurrer  is  well  taken,  whether  the  portion  of  the  answer  de- 
murred to  be  regarded  as  a  defence  or  a  counter-claim,  and  this 
renders  it  unnecessary  for  us  to  determine  whether,  if  the  allega- 
tions of  the  answer  are  true,  the  deed  in  question  ought  to  be 
cancelled  in  some  proper  proceeding  for  that  purpose.     *     *     * 

Judgment  affirmed. 


Section  5.     Union  of  Defences. 

WILLIAMS  v.  LANGFORD. 

15  B.  Monroe  (Ky.)  566..   [1855.] 

This  suit  was  brought  by  the  administrator  of  Williams 
against  David  Langford,  (a  man  of  color)  who  was  the  slave 
of  Williams  until  the  23rd  of  September,  1842,  when  he  was 
emancipated  by  deed  duly  admitted  to  record.  On  the  day  after 
the  date  of  the  deed  of  emancipation,  Langford,  with  four  others 


744  THE    ANSWER.  [ChAP.  IV. 

as  his  securities,  executed,  and  delivered  to  "Williams  a  covenant 
by  which  Langford  was  bound  to  pay,  in  consideration  of  his 
being  emancipated,  to  Williams  one  hundred  dollars  a  year  dur- 
ing the  life-time  of  Williams,  and  if  Williams  should  survive 
David,  then  during  the  natural  life  of  David ;  payable  in  equal 
installments  on  the  1st  of  January  and  the  1st  of  July  in  each 
year,  commencing  with  January,  1843.  This  suit  was  brought 
on  the  17th  of  January,  1852,  by  the  administrator  against  the 
surviving  obligors  in  the  covenant.  It  is  averred  in  the  petition 
that  Williams  died  on  the  8th  of  January,  1850,  and  that  the 
installments  due  upon  the  covenant  were  due  and  unpaid. 

The  defendants  say  in  their  answer  that  they  have  well  and 
truly  paid  to  Williams  in  his  life-time  all  that  he  claimed  and 
all  that  was  due  upon  the  covenant.  That  Langford,  a  short 
time  before  the  death  of  Williams,  paid  him  one  hundred  dollars, 
which  was  accepted  by  him  in  full  discharge  of  the  covenant  sued 
on,  and  which  was  all  that  was  due  and  claimed  by  Williams. 

The  plaintiff  demurred  to  the  answer,  but  the  court  overruled 
the  demurrer,  and  the  parties  went  to  trial  on  the  issue  formed 
by  the  petition  and  answer,  and  a  jury,  upon  the  third  trial, 
found  a  verdict  for  the  defendants.  The  plaintiff  moved  for  a 
new  trial,  on  the  ground  that  the  court  erred  in  overruling  the 
demurrer  and  instructions  given  to  the  jury ;  which  motion  being 
overruled,  the  defendants  have  appealed  to  this  court. 

Judge  Crenshaw  delivered  the  opinion  of  the  Court : 

It  is  manifest  that  the  proof  does  not  show  payment  of  all  the 
installmentc  provided  for  in  the  covenant  down  to  the  death 
of  Williams.  So  far,  therefore,  as  full  payment  or  "covenants 
performed,"  is  relied  upon  in  the  answer,  the  defence  was  not 
sustained  by  the  testimony. 

The  answer  sets  out  three  matters  of  defence,  to-wit:  pay- 
ment, covenants  performed,  and  accord  and  satisfaction  by  the 
payment  of  one  hundred  dollars  a  short  time  before  the  death 
of  Williams. 

The  answer  was  demurred  to,  because  these  different  matters 
of  defence  were  not  set  out  in  separate  and  distinct  paragraphs, 
and  because  the  matter  of  accord  and  satisfaction  was  not  suffi- 
ciently pleaded.  However  desirable  it  may  be  that  the  requisi- 
tions of  the  Code  should  be  conformed  to  in  all  respects,  the 
fact  that  the  different  defences  were  not  set  out  in  separate 
paragraphs  is  not  a  cause  of  demurrer,  but  of  motion  to  the 


Sec.  5]  Williams  v.  langford.  745 

court  to  have  the  different  defences  set  out  in  distinct  paragraphs. 
These  different  defences,  however,  were  as  distinct  as  set  out, 
as  if  they  had  been  contained  in  separate  paragraphs;  and  the 
demurrer  ought  not  to  have  been  to  the  whole  answer,  which  con- 
tains two  valid  defences,  but  only  to  that  part  of  the  answer 
which  relied  upon  accord  and  satisfaction.  The  two  defences  of 
payment  and  covenants  performed  were  well  pleaded,  but  the 
defence  of  accord  and  satisfaction  is  not  well  pleaded,  and  the 
demurrer  ought  to  have  been  sustained  to  this  latter  defence, 
had  it  been  to  this  part  of  the  answer  only;  but,  being  to  the 
whole  answer,  which  presented  some  good  defences,  it  was  prop- 
erly overruled.     *     *     * 

Judgment  reversed* 


GARDNER  v.  CLARK. 

21  N.  Y.  399.     [I860.] 

Appeal  from  the  Supreme  Court.  Action  by  the  assignee  of 
one  Addison  Gardner  for  damages  for  the  non-performance  of  a 
contract  to  sell  and  deliver  a  thousand  bushels  of  barley,  at 
forty-four  cents  per  bushel.  The  barley  was  to  be  delivered  at 
the  store  house  of  one  Dunham,  who  was  Gardner 's  agent  for  the 
purpose  of  receiving  and  paying  for  the  same,  and  was  to  be 
paid  for  as  fast  as  it  should  be  delivered. 

The  defendant's  answer  set  up,  among  other  things,  the  de- 
livery of  a  portion  of  the  barley,  and  that  the  defendant  had 
always  been  ready  and  willing  to  deliver  the  residue,  according 
to  the  terms  of  the  contract;  but  that  Gardner  was  not  ready 
or  willing  to  receive  or  pay  for  the  same,  according  to  the  terms 
of  the  contract.  The  evidence  upon  this  point,  and  the  decision 
of  the  judge  at  circuit  founded  thereon,  are  sufficiently  stated 
in  the  following  opinion. 

For  a  further  answer,  the  defendant  averred  that,  in  Novem- 
ber, 1847,  Adison  Gardner,  then  being  the  sole  person  in  interest 
in  the  contract  and  damages  which  are  the  subject  of  this  suit, 
commenced  an  action  in  the  Supreme  Court  against  the  defendant 

*The  same  rules  as  to  completeness  and  incorporation  by  reference 
in  cases  of  separate  counts  in  a  complaint  apply  to  the  statement  of 
several  defences  in  an  answer. — Harmon  v.  Harmon,  54  S.  C.  100. 


746  THE   ANSWER.  [ChAP.  IV. 

by  writ  of  capias  ad  respondendum,  commanding  the  sheriff  to 
have  the  body  of  the  defendant  before  &c.,  at,  &c.,  to  answer 
&c.,  in  a  plea  therein  mentioned ;  that  the  defendant  was  taken 
and  held  to  answer;  "and  that,  by  said  writ  and  taking  of  said 
Perkins  Clark  as  aforesaid,  a  former  suit  and  action  at  law  was 
commenced  by  the  said  Adison against  the  said  defend- 
ant for  and  upon  the  same  identical  cause  of  action  in  this  present 
action  mentioned,  and  that  the  said  former  action  is  pending  and 
not  discontinued."  Upon  the  trial  the  defendant  offered  proof 
in  respect  to  such  former  action,  making  his  offer  in  the  same 
terras  precisely  as  those  of  the  answer.  The  judge,  upon  the  ob- 
jection of  the  plaintiff,  rejected  the  evidence,  holding  that  such 
former  action  was  no  defence,  and  that  the  defendant,  having 
interposed  a  defence  on  the  merits,  waived  his  defence  of  the 
former  action  pending,  and  could  not  prove  his  offer.  The  de- 
fendant took  exception  The  charge  and  exceptions  thereto  are 
sufficiently  stated  in  the  following  opinion.  The  jury  found  a 
verdict  for  the  plaintiff,  and  the  judgment  entered  thereon  hav- 
ing been  affirmed  at  general  term  in  the  fifth  district,  the  de- 
fendant appealed  to  this  court. 

Selden,  J. :  It  is  quite  certain  that  the  judge  at  the  circuit 
erred  in  supposing  that,  by  including  a  defence  upon  the  merits 
in  the  same  answer  with  the  defence  of  a  former  suit  pending  for 
the  same  cause  of  action,  the  defendant  had  waived  the  latter 
defence.  A  doubt  at  one  time  existed,  whether  the  Code  had 
abrogated  the  rule  of  the  common  law  which  required  matters 
in  abatement  to  be  first  pleaded  and  disposed  of  before  pleading 
in  bar  to  the  action ;  and  there  were,  in  the  Supreme  Court,  con- 
flicting decisions  upon  the  subject.  The  question,  however,  came 
before  this  court  in  the  case  of  Sweet  v.  Tuttle  (4  Kern.,  465), 
where  it  was  held  that  the  Code  provided  for  but  a  single  answer, 
in  which  the  defendant  is  required  to  include  every  defence  upon 
which  he  relies  to  defeat  the  action.  This  decision  must  be  con- 
sidered as  settling  the  question.  The  only  serious  inconvenience 
suggested  as  likely  to  result  from  this  construction  of  the  Code 
is  that  when  an  answer  embraces  both  a  defence  in  abatement 
and  in  bar,  if  the  jury  find  a  general  verdict,  it  will  be  impos- 
sible to  determine  whether  the  judgment  rendered  upon  the 
verdict  should  operate  as  a  bar  to  another  suit  for  the  same  cause 
of  action  or  not.  It  would,  however,  be  the  duty  of  the  judge 
at  the  circuit,  in  such  a  case,  to  distinguish  between  the  several 


Sec.  5]  Gardner  v.  clark.  '747 

defences  in  submitting  the  cause  to  the  jury,  and  require  them 
to  find  separately  upon  them.  In  that  way,  it  is  probable  that 
the  confusion  which  might  otherwise  result  may,  in  most  cases, 
be  avoided.  At  all  events,  the  Code  admits,  I  think,  of  no  other 
construction. 

The  judge,  therefore,  was  not  justified  in  rejecting  the  evi- 
dence offered  at  the  trial  to  show  the  pendency  of  a  former  suit 
for  the  same  cause  of  action,  upon  the  ground  that  this  branch  of 
defence  had  been  waived  by  including  in  the  answer  a  defence 
upon  the  merits.  If,  however,  for  any  other  reason,  the  evidence 
was  inadmissible,  its  exclusion  should  be  sustained.  The  judge 
gave  another  reason  for  rejecting  it,  viz.,  that  "such  former 
action  pending  was  no  defence  to  this  action."     *     *     * 

Judginent  reversed* 


COOK  V.  FINCH. 

19  Minn.,  407.     [1872.] 

Berry,  J. :  *  *  *  Defendants  set  up  in  their  answer  tha1rO-Vx«.  n^Lsuo^ 
the  contract,  upon  which  the  plaintiffs  complain,  was  "revoked,  Vj^^^  vaj-^ov^ 
annulled,  and  modified."  As  the  contract  could  not  be  revoked,  o^~*-^  ^"W"^ 
and  annulled,  and  also  modified,  the  defences  thus  set  up  were  "vxyv^.^.t^U.^j^  . 
inconsistent,  and  we  see  no  reason  why  defendants  were  not-'i^-AA.^.^ji^-xi 
properly  compelled  to  elect,  upon  which  they  would  stand.  Con-  VAy-o=r>./v>«Lj..-q 
way  v.  Wharton,  13  Minn.,  160  (Gil.  145).     *     *     *  c>^fw^_^ 


BRUCE  V.  BURR.  "V^ 

67  N.  Y.,  237.    [1876.] 

Appeal  from  an  order  of  the  General  Term  of  the  Court  of 
Common  Pleas,  for  the  city  and  county  of  New  York,  reversing 
a  judgment  in  favor  of  the  plaintiff,  entered  upon  the  report  of  a 
referee,  and  granting  a  new  trial.    (Reported  below,  5  Daly,  510.) 

This  action  was  brought  to  recover  damages  for  the  alleged 
breach  of  a  contract  of  sale  on  the  part  of  the  defendants. 

The  complaint  alleged,  and  the  referee  found,  in  substance, 

*Accord:     Little  v.  Harrington,  71  Mo.  390,  overruling  prior  cases. 


748 


THE   ANSWER.  [ClIAP.  IV. 


that  the  defendants  contracted  to  sell  and  deliver  to  llic  plain- 
tiff certain  books  and  publications  to  the  amount  of  $2,975.50, 
and  agreed  to,  and  did,  receive  in  payment  therefor  the  promis- 
sory note  of  one  0.  F.  Lund  for  that  amount;  that  defendants 
delivered  a  portion  of  said  books  and  publications  in  pursuance 
of  the  agreement,  ])ut  refused  to  deliver  the  balance.  The  de- 
fendants, in  their  answer,  claimed  to  rescind  the  contract  on  the 
ground  of  fraudulent  representations  on  the  part  of  the  plain- 
tiff, as  to  the  solvency  of  the  maker  of  the  note.  While  the  trial 
was  pending  before  the  referee,  the  defendants,  upon  motion, 
were  granted  permission  to  serve  an  amended  answer,  setting 
forth  an  additional  defence,  and  as  a  counter-claim,  a  breach  of 
warranty,  on  the  part  of  the  plaintiff,  as  to  the  goodness  of  the 
note  and  the  responsibility  of  the  maker.  On  the  continuance 
of  the  hearing  before  the  referee  plaintiff's  coun.sel  asked  that 
the  defendants  be  compelled  to  elect  between  the  defences  of 
recision  and  breach  of  warranty,  which  request  was  denied,  and 
said  counsel  duly  excepted.     »     *     * 

Church,  Ch.  J.:     There  is  a  legal  difficulty,  although  some- 
what technical,  in  sustaining  the  decision  of  the  General  Term  in 
favor  of  the  defendants,  on  the  ground  of  a  right  of  recission 
founded  upon  a  mutual  mistake,  within  the  principle  decided  in 
16  N.  Y.^  595,  and  43  id.,  159.    That  defence  was  not  set  up  in 
the  answer.    A  right  to  rescind  on  the  ground  of  fraud  was  set 
-   c^*-a^     up^  but  not  on  the  ground  of  mutual  mistake.    The  evidence  was 
stjy^^^iuxnA^  competent  upon  the  issue  made,  and  the  right  to  object  to  its 
JL^  «.A^     ^^^^  ^p^^  ^^  jgg^^^  ^^^  ^g^^  ^y  ^l^g  pleadings  was  not,  therefore, 

^J^,'^--^  waived.     (54  N.  Y.,  577.) 

^^    V>^  The  General  Term  having  reversed  the  judgment  below  upon 

,  the  facts,  this  court  has  a  right  to  review  such  decision,  and  for 
■^  .  '' N  that  purpose,  all  the  facts  are  before  the  court  for  consideration ; 
v-a.  Wlo  ^^^  jf  ^Yie  facts  justify  a  reversal  of  the  judgment,  although 
^-^Ms^a-^  upon  a  different  theory  from  that  adopted  by  the  General  Term, 
^'''^''"■*'^^^^^^-'^  the  decision  of  the  latter  should  be  sustained. 

J'^-*'^J"*^^^<>^'  One  of  the  defences  set  up  in  the  amended  answer  by  the 
•^  ^-a^-NO,  special  permission  of  the  court  was  a  parol  warranty  of  the  good- 
''-Vv*^^'^'^  iiess  of  the  note  and  of  the  solvency  of  the  maker.  An  objection 
r^^i^^'-S.^-^^s  made  that  this  defence  is  not  available  because  inconsistent 

'.>»vvSA-^.<^with  the  defence  of  a  right  of  recission  founded  upon  fraud  or 
V-^o^-suji  mistake.  The  proper  mode  of  interposing  this  objection  would 
^a^/v^^y5-aJ5-   have  been  by  appealing  from  an  order  permitting  the  defence 


Sec.  5]  bruce  v.  burr.  749 

to  be  made.  But  the  objection  is  not  tenable.  The  Code  (§  150) 
allows  a  defendant  to  put  in  as  many  defences  or  counter-claims 
as  he  ma}'-  have,  and  the  objection  of  inconsistency  between  them 
is  not  available.  The  tirst  question  is  whether  this  defence  was 
established.     *     *     * 

Judgment  affirmed. 


-^     .^^^^-ia^w^ 


BUHNE  V.  CORBETT. 
43  Cal.,  261.     [1872.] 

By  the  Court,  Wall.vce,  C.  J. : 

This  action  was  broujjht  to  recover  the  possession  of  a  tract 
of  land  situate  in  the  County  of  Humboldt.  The  pleadings  are 
verified.  The  complaint  alleges  that  the  plaintiff  is  the  owner 
in  fee  of  the  premises  which  are  described,  and  that  the  defend- 
ants "on  the  2nd  day  of  February,  1870,  entered  into  the  pos- 
session of  the  demanded  premises  above  described,  and  have  ever 
since  and  still  do  unlawfully  withhold  the  possession  thereof 
from  the  plaintiff,"  etc.,  concluding  with  the  usual  prayer  for 
judgment.    The  answer  is  as  follows : 

"Now  comes  Joseph  Corbett,  John  Doe  (Walter  Cutler),  and 
Richard  Roe  (E.  II.  Pinnev),  defendants  in  the  above  entitled  '^J'^^  "^  - 
action,  and  answering  the  complaint  of  the  plaintiff  herein,  on     ^cj.^.___r;^-' 

their  information  and  belief  deny  that  on  the  1st  day  of  Febru-  ,; '^:k,^.,^i„ 

ary,  1870,  or  at  any  other  time,  the  plaintiff  was,  or  now  is,  or  n^iSla^.  -^Jon^ 
ever  has  been,  the  owner  of,  or  seized  in  fee,  or  entitled  to  the    ^"  ^  ^v-A::.  i 
possession  of  the  tract  of  land  described  in  said  complaint,  or  A>^'Na_j»Xr  Ajl' 
any  part  thereof ;  and  deny  that  on  said  day,  or  any  other  time,  <^JU^v>jiON/s^  -c 
the  defendants  entered  into  the  possession  of  the  same,  or  any  f^-^^^-o^ot-v^ 
part  thereof,  or  that  they  ever  withheld,  or  now  withhold  the  '^^-^-V'  'X'v-A 
possession  of  the  same,  or  any  part  thereof,  from  the  plaintiff.  (k/-njbsj^^^,^^,^.^jvj:^ 
Further  answering,  the  said  defendants  aver  that  from  the  y^^v-'pi,.^  ^ysir^^ 
A  .D.  1848,  down  to  the  23rd  day  of  IMay,  A.  D.  1867,  inclusive,  oJkXjur,;,,^,^^^ 
the  tract  of  land  described  in  the  plaintiff's  complaint,  was  public  :i5u<v<i^\~3>^  t 
land  of  and  belonging  to  the  United  States,  and  that  on  the  day  j^    S«    0^.^%^ 
last  named,  and  prior  thereto,  by  orders  of  the  President  of  the  "^.V^  j».ji,etr- 
United  States,  one  bearing  date  of  that  day  and  another  thereto,  <:y^e^^3^.  aX-^m 
and  in  due  course  of  law,  the  said  lands,  and  the  whole  thereof,    ^^"^•v^ool  >*so, 
was  reserved  to  the  United  States  for  lighthouse  purposes,  and  p^-^-^'^^^-OKo/v^ 


750  THE   ANSWER.  [ChAP.  IV. 

from  thence  hitherto  have  remained,  and  still  do  remain  so  re- 
served for  the  purposes  aforesaid;  and  that  during  all  of  said 
time,  from  the  year  1848  hitherto,  the  United  States  has  been 
and  still  is  the  owner  in  fee  and  seized  of  said  land  and  every 
part  thereof. 

"That  from  the  23rd  day  of  May,  1867,  hitherto,  the  United 
States  has  continuously  occupied  and  possessed  said  lands  for 
lighthouse  purposes  aforesaid,  and  has  erected  a  lighthouse  and 
light,  and  other  improvements  thereon,  for  the  protection  and 
safety  of  ships  and  other  vessels  navigating  the  waters  of  the 
Pacific  Ocean,  at  an  expense  of  about  one  hundred  thousand 
dollars. 

"That  the  said  defendants  are  the  keepers  of  the  light  and 
lighthouse  aforesaid,  employed  for  that  purpose  by  the  said 
United  States,  at  stipulated  w^ages,  and  that  they  are,  as  such 
keepers,  the  mere  servants  and  employes  of  the  said  United 
States,  subject  at  any  and  all  times  to  the  orders,  directions,  and 
commands  of  the  said  United  States  and  certain  of  the  officers 
thereof,  and  to  be  discharged  and  removed  from  such  service  and 
employment. 

' '  That  as  such  lighthouse  keepers,  and  under  and  in  obedience 
to  the  orders,  directions,  and  commands  of  the  said  United  States 
and  officers,  these  defendants,  as  such  servants  and  employes  for 
the  year  last  passed,  have  been  and  still  are  in  the  temporary 
charge  of  the  light  and  lighthouse  buildings  on  said  land  for  the 
sole  purpose  of  keeping  the  light  burning  at  proper  times,  and 
keeping  the  said  lighthouse  building  in  proper  repair,  all 
in  performance  of  and  in  obedience  to  the  duties  of  keepers  as 
aforesaid,  as  the  same  are  regulated  and  prescribed  by  the  said 
United  States  and  officers. 

"The  said  defendants  further  aver  that  they  do  not  now 
nor  have  they  ever  claimed  or  had  any  interest  in  said  land  or 
improvements,  or  any  part  thereof;  and  that  from  the  time  of 
the  reservation  aforesaid  the  United  States  by  and  through  these 
defendants  and  other  of  its  servants  and  employes,  has  con- 
tinually been  and  still  is  in  the  sole  and  exclusive  possession  and 
occupation  of  the  said  land  and  improvements,  and  every  part 
thereof. 

"Wherefore  the  defendants  pray  that  they  be  hence  dis- 
missed, and  that  they  may  have  judgment  against  the  plaintiff 
for  costs  of  suit. '  * 


Sec.  5]  buhne  v.  corbett.  751 

At  the  trial,  the  plaintiff  offered  no  evidence  whatever  touch- 
ing the  alleged  fact  of  the  possession  of  the  defendants,  and,  on 
motion  of  the  defendants,  a  judgment  of  non-suit  was  rendered, 
on  the  ground  "that  the  plaintiff  has  not  shown  the  defendants 
to  have  been  in  the  possession  of  the  said  premises  at  the  com- 
mencement of  this  action,  or  at  any  other  time;"  and  from  that 
judgment  this  appeal  is  brought. 

We  are  of  opinion  that  the  non-suit  was  correct  upon  the  plead- 
ings. 

The  practice  Act  (Sec.  49)  provides  as  follows:  "The  de- 
fendant may  set  forth  by  answer  as  many  defences  and  counter- 
claims as  he  may  have.  They  shall  each  be  separately  stated,  and 
the  several  defences  shall  refer  to  the  causes  of  action  which  they 
are  intended  to  answer,  in  a  manner  by  which  they  may  be  in- 
telligibly distinguished." 

It  will  be  observed  that  the  answer  here,  in  the  first  defence 
set  forth,  distinctly  denies,  "that  on  said  day,  or  any  other  time, 
the  defendants  entered  into  the  possession  of  the  same,  or  any 
part  thereof,  or  that  they  ever  withheld,  or  now  withhold,  the 
possession  of  the  same,  or  any  part  thereof,  from  the  plaintiff;" 
and  while  it  is  possible  that,  under  strict  rules  applicable  to  veri- 
fied answers,  an  objection  might  have  been  made  to  the  suf- 
ficiency of  this  denial  in  a  single  particular,  none  such  was, 
in  fact,  made  below,  nor  has  any  been  pointed  out  here. 

After  this  denial,  the  defendants,  "further  answering,"  make 
certain  affirmative  averments,  in  the  course  of  which  they  set 
up  that  they  are  in  charge  of  the  lighthouse  on  the  premises  as 
the  employes  of  the  United  States,  etc. ;  and  it  is  upon  the  effect 
of  these  averments  in  pleading  that  we  understand  the  plaintiff 
to  claim  that  he  was  relieved  from  the  necessity  of  proving  that 
the  defendants  were  in  possession  at  the  time  the  action  was  com- 
menced. 

1.  Assuming  that  the  defences,  as  thus  pleaded,  were  incon- 
sistent upon  the  point  of  the  possession  of  the  defendants,  it 
would  not  follow  that  the  plaintiff'  would  be  at  liberty  to  dis- 
regard them,  or  either  of  them,  at  the  trial.  If  he  desired  to  pre- 
sent that  question,  he  should  have  moved  to  strike  out  the  one  or 
the  other,  or  applied  for  an  order  compelling  the  defendants  to 
elect  as  to  which  particular  one  of  them  they  would  rely  upon. 
(Klink  V.  Cohen,  13  Cal.,  623;  Uridias  v.  Morrill,  25  Cal.,  31.) 

2.  But  even  had  he  by  motion  presented  the  question  of  the 


752  THE    ANSWER.  [ChAP.  IV. 

supposed  inconsistency  of  the  several  defences  in  the  answer,  we 
think  that  it  would  not  have  availed  him.  A  party  defendant  in 
pleading  may  plead  as  many  defences  as  he  may  have.  If  a 
plea  or  defence  separately  pleaded  in  an  answer  contain  several 
matters,  these  should  not  be  repugnant  or  inconsistent  in  them- 
selves. But  the  plea  or  defence  regarded  as  an  entirety,  if  it 
he  otherwise  sufficient  in  point  of  form  and  pi^hstance^  is  not  to 
be  defeated  or  disregarded  merely  because  it  is  inconsistent  with 
some  other  plea  or  defence  pleaded.  And  there  is  no  distinction 
TnttTis  rspect  between  pleadings  verified  and  pleadings  unverified. 
(Bell  V.  Brown,  22  Cal.,  672:  Wilton  v.  Cleveland,  30  Cal.,  192.) 
"We  are,  therefore,  of  opinion  that  the  judgment  must  be  af- 
firmed, and  it  is  so  ordered. 


RHINE  V.  MONTGOMERY. 
50  Mo.,  566.     [1872.] 

Adams,  Judge,  delivered  the  opinion  of  the  court : 

This  was  an  action  for  assault  and  battery.  The  answer  sets 
up  three  separate  defences:  First,  a  denial  of  the  assault  and 
battery:  second,  that  the  plaintift'  made  the  first  assault,  which 
was  repelled  by  the  defendant  in  self-defence;  third,  that  the 
defendant  was  in  his  own  dwelling,  and  the  plaintiff  was  un- 
lawfully there,  and  refused  to  leave,  and  he  used  sufficient  force 
to  put  him  out,  and  only  such  force  as  was  necessary.  The  rec- 
ord does  not  show  that  any  replication  was  filed  to  the  second 
and  third  defences. 

The  jury  found  a  verdict  for  the  plaintiff,  and  a  motion  for  a 
new  trial  was  made  and  overruled.  The  court,  at  the  instance  of 
the  plaintiff,  and  against  the  objections  of  the  defendant,  gave 
several  instructions  to  the  jury.  But  we  are  only  called  upon 
to  examine  the  first  instruction,  which  reads  as  follows: 

"The  defendant's  answer  admits  the  assault  and  battery  upon 
the  plaintiff,  with  all  the  aggravated  injuries  to  plaintiff,  as 
charged  by  plaintiff  in  his  petition ;  and  unless  the  jury  shall 
believe  from  the  evidence  in  the  cause  that  the  defendant  was 
either  excusable  or  justifiable  in  making  such  assault  and  bat- 
tery, they  will  find  for  the  plaintiff,  and  assess  to  him  such  dam- 


Sec.  5]  rhine  v.   Montgomery.  753 

ages  against  the  defendant  as  under  all  the  circumstances  they 
may  think  proper,  not  exceeding  $2,000;  and  in  estimating  the 
damages  they  may  take  into  consideration  the  pain,  sufferings, 
and  mental  anguish  and  wounded  feelings  of  the  plaintiff  in  con- 
sequence of  such  assault  and  battery." 

Under  the  pleadings  as  they  stand  here,  it  is  difficult  to  per- 
ceive upon  what  principle  this  instruction  was  allowed.  It  as- 
serts that  plaintiff's  entire  case  was  admitted  by  the  answer,  and 
under  it,  all  the  plaintiff  was  bound  to  do  was  to  read  his  petition 
to  the  jurj'  and  rest.  The  court  may  have  acted  on  the  mistaken 
theory  that  the  positive  denial  of  the  trespass  was  waived  by  the 
subsequent  supposed  additions  of  the  pleas  of  justification.  Our 
present  code  of  practice,  like  the  old  system  of  pleading,  permits 
several  consistent  defences  to  be  set  up  in  the  same  answer.  The 
only  question,  therefore,  is  whether  these  defences  were  consistent 
with  each  other.  The  three  defences  amounted  in  substance  to 
the  old  pleas  of  not  (juilty — son  assault  demesne,  and  mollitur 
manus  imposuit. 

The  trespass  complained  of  is  an  unlawful  battery.     The  de- 
fendant's first  defence  is  a  denial  of  the  alleged  trespass.     The 
second  and  third  defences  are  justificatiorus  of  the  defendant's 
acts,  and  are  in  no  sense  express  or  implied  admissions  that  they  <X*ft  ^.c-Nrw^jA: 
were  unlawful.     The  three  defences  are  clearly  consistent,  both  rVo^..^^    rX^: 
at  common  law  and  under  our  statute.     (Nelson  v.  Brodhack,  44  j  (^SX:^>^>_p  ^ 
Mo.,  596 ;  Lansing  v.  Parker,  9  How.  Pr.,  288.)  vs/^«j3tr-r^U^ 

But  there  were  no  replications  to  the  new  matter  contained  in^\  » 
the  defendant's  pleas  of  justification,  and  under  our  statute  all 
the  material  allegations  of  new  matter  not  controverted  by  the 
reply  are,  for  the  purposes  of  the  action,  to  be  taken  as  true. 
(Wagn.  Stat.  1019,  §  36.)  The  instruction  referred  to  erroneous- 
ly assumed  that  the  new  matter  had  been  controverted  by  the 
reply.  This  was  obviously  a  mere  oversight,  and  the  replies  were, 
no  doubt,  unintentionally  omitted,  and  may  be  supplied  at  any 
time  by  permission  of  the  court  before  trial. 

Judgment  reversed  and  the  cause  remanded.  The  other  judges 
concur. 


XJoJ-^i 


M 


48 


«754  THE   ANSWER.  [CUAP.  IV. 

STEENERSON  v.  WATERBURY. 
5.2  Minn.,  211.     [1893.] 

Collins,  J. :  On  the  trial  of  this  action,  which  was  brought  to 
recover  for  professional  services  alleged  to  have  been  rendered 
by  plaintiff,  as  an  attorney  at  law,  at  the  defendant's  request,  the 
principal  question  for  the  jury  was  as  to  the  power  or  authority 
of  the  defendant's  agent  to  employ  the  plaintiff.  There  was  a 
verdict  in  his  favor,  and  a  new  trial  was  granted,  on  the  ground, 
as  appears  from  a  memorandum  attached  to  the  order  appealed 
from,  that  the  testimony  which  was  produced  to  establish  the 
power  or  authority  of  the  agent  to  employ  the  plaintiff'  was  in- 
sufficient to  charge  the  defendants  with  his  alleged  act.  What- 
ever might  be  said  as  to  the  sufficiency  of  the  evidence  to  support 
the  verdict,  had  defendants'  motion  for  a  new  trial  been  denied, 
and  an  appeal  taken  by  them,  it  is  apparent,  on  this  appeal,  that 
the  evidence  on  the  main  question  was  not  so  manifestly  and 
palpably  in  favor  of  the  verdict  as  to  justify  us  in  declaring  that 
the  learned  trial  court  abused  its  discretion  when  making  the 
order  appealed  from.  It  must,  therefore,  be  affirmed,  and  this 
renders  it  proper  for  us  to  briefly  discuss  two  questions  which 
presented  themselves  on  the  first,  and  which  would  undoubtedly 
be  raised  on  the  second  trial,  unless  disposed  of  at  the  present 
time. 

1.  There  was  a  general  denial  in  the  answer  by  which  the 
allegations  of  the  complaint  as  to  the  rendition  of  the  services, 
and  that  they  were  performed  at  the  defendants'  request,  were 
put  in  issue,  and  this  denial  was  followed  by  a  special  averment 
that  prior  to  the  commencement  of  the  action  defendants  had 
paid  plaintiff  in  full  of  all  demands,  including  that  set  forth  in 
the  complaint.  The  position  of  the  plaintiff  was,  and  is.  that 
,  because  of  an  inconsistency  between  the  general  denial  and  the 
special  plea  of  payment,  the  latter  controlled,  and  it  stood  ad- 
.  mitted  on  the  trial  that  the  professional  services  were  rendered 
at  defendants'  request.  Under  our  system  of  pleading,  a  defend- 
ant may  set  up  as  many  defences  as  he  may  have ;  the  only  limit 
to  this  right  being  that  they  must  not  be  inconsistent.  Separate 
and  distinct  defences  are  consistent  when  both  may  be  true,  and 
are  only  held  inconsistent  when  the  proof  of  one  necessarily  dis- 


Sec.  5]  steenerson  v.  waterbury.  755 

proves  the  other.  These  allegations  did  not  stand  opposed  to  the 
extent  that,  if  one  should  be  established  by  testimony,  the  other 
would  of  necessity  be  proven  untrue ;  for  the  fact  might  be  that 
plaintiff's  services  had  been  rendered  without  defendants'  re- 
quest, and  yet  have  been  considered  and  taken  into  account  in  a 
subsequent  settlement,  at  which  they  paid  plaintiff  in  full  of  all 
demands. 

There  exists  no  good  reason  why  one  should  not  be  permitted 
to  settle  a  claim  for  services  which  he  regards  as  unjust,  because 
no  servicT?s  have  been  required,  without  having  his  act  construed 

to  his  prejudice. 

Order  affirmed. 


LEAVENWORTH  LIGHT  &  HEATING  CO.  v.  WALLER. 

65  Kan.,  514.     [1902.] 

Plaintiff's  action  was  for  damages  done  by  the  burning  of 
her  barn.  The  petition  charged  "that  the  defendant,  its  officers 
and  agents,  thereunto  duly  authorized  and  empowered,  entered 
into  and  contracted  with  said  plaintiff",  whereby  the  said  defend- 
ant was  to  put  and  place  lights  in  said  barn  for  the  use  of  the 
plaintiff;"  that,  in  putting  in  the  necessary  wires,  the  same  were 
not  large  enough,  nor  properly  insulated,  and  were  placed  care- 
lessly and  negligently,  so  that  the  injury  of  which  she  complains 
resulted.  The  answer  was  first  a  general  denial,  "and,  for  a 
second  and  further  ground  of  defence  herein,  defendant  refers 
to  the  foregoing  part  of  this  answer  as  part  hereof,  and  further 
avers  that  if  plaintiff  was  in  any  wise  damaged  or  injured  as 
set  forth  in  the  petition,  which  this  defendant  denies,  then  the 
defendant  avers  that  the  plaintiff  and  her  agents,  by  her  duly 
appointed  and  authorized,  so  acted  and  conducted  themselves  as 
to  contribute  to  the  damage  and  injury  complained  of."  For 
reply,  the  plaintiff  filed  a  general  denial.  Upon  these  issues  a 
trial  was  had,  which  resulted  in  a  verdict  and  judgment  for  the 
defendant.  From  it  error  was  prosecuted  to  the  court  of  appeals. 
Northern  department.  Eastern  division,  where  the  same  was  re- 
versed, and  the  case  remanded  for  further  trial.  See  Waller  v. 
Heating  Co.,  9  Kan.  App.,  301  (61  Pac,  327).  A  second  trial 
was  had  upon  the  same  pleadings.    The  defendant  then  sought 


756 


THE   ANSWER.  [ChAP.  IV. 


to  show  by  competent  evidence  that  it  was  not  the  owner  of  the 
electric  light  plant  operatin-;  the  li-hts  in  phiintiff's  barn  at  the 
time  the  fire  occurred,  but  that  another  and  separate  corporation, 
from  which  plaintiff  subsequently  purchased,  was  at  that  time 
the  owner.  This  evidence  was  rejected  by  the  court  upon  the  ob- 
jection of  the  plaintiff.     *     *     * 

Cunningham,  J.:  (after  stating  the  facts.)  The  reasons 
urged  for  the  exclusion  of  the  evidence  are :  First,  that  the  same 
was  irrelevant  and  immaterial,  because  not  within  the  issues  in 
this  case;  second,  that  when  the  case  was  in  the  appellate  court, 
defendant's  attorneys  admitted  in  their  brief  filed  in  that  pro- 
ceeding in  error  that  the  defendant  was  the  owner  of  the  electric 
lighting  plant  at  the  time  of  the  fire. 

In  support   of  the   first   contention,   it   is  urged,   first,   that 
the  plea  of  contributory  negligence  contained  in  defendant's  sec- 
ond defense  was  in  effect  an  admission  that  defendant  caused  the 
damage  complained  of;  that  to  deny  defendant's  negligence  is 
inconsistent  with  tlie  plea  of  contributory  negligence  on  the  part 
of  the  plaintiff;  that  there  could  be  no  contributory  negligence 
on  the  part  of  the  plaintiff  without  the  antecedent  negligence  on 
the  part  of  the  defendant.     In  the  language  of  the  defendant  in 
error,  "The  plea  of  contributory  negligence  is  in  the  nature  of  a 
plea  of  confession  and  avoidance,  and  if  this  be  true,  then  the 
defendant  is  estopped  from  denying  its  identity  as  the  party 
properly  sued."    This  raises  a  novel  and  important  question  in 
our  practice.     It  will  be  observed  that  the  defendant's  answer 
contained  a  general  denial.     This,  standing  alone,  would  have 
put  the  plaintiff  upon  proof  of  all  of  the  material  allegations  in 
her  petition.    One  of  these  allegations  was  that  the  defendant's 
negligenc-e  was  the  cause  of  her  injury.     She  was  thereby  re- 
quired to  establish  not  only  negligence,  but  to  connect  the  de- 
fendant with  such  negligence  by  showing  its  ownership  of  the 
electric  light  plant  at  the  time  of  the  injury.     Railway  Co.  v. 
Searle,  11  Colo.,  1  (16  Pac,  328)  ;  Jackson  v.  Water  Co.,  14  Cal., 
19 ;  Schular  v.  Railroad  Co.,  38  Barb.,  653 ;  Greenway  v.  James, 
34  Mo.,  328.    This  she  sought  to  do  in  making  her  case,  by  intro- 
ducing evidence  that  the  defendant  was  the  owner  of  the  electric 
light  plant  at  that  time.    This  denial,  standing  alone,  would  not 
only  require  this  proof  at  the  hands  of  the  plaintiff,  but,  per 
contra,  permit  the  defendant  to  disprove  this  material  matter, 
Davis  V.  McCrocklin,  34  Kan.,  218   (8  Pac,  196).     It  will  be 


Sec.  5]    leavenwortii  light  &  heating  co.  v.  waller.         757 

further  observed  that  the  defendant,  in  its  second  defense,  while 
still  denying  generally,  says  that,  if  the  plaintiff  was  damaged, 
then  such  damage  was  occasioned  by  the  contributory  negligence 
of  the  plaintiff  or  her  agents.     We  do  not  think  this  clann  in- 
consistent with  the  claim  that  the  injury  was  not  committed  by 
the  defendant,  or  occurred  through  his  negligence.    The  defend- 
ant in  error  cites  various  authorities  in  support  of  her  claim. 
They  are  strongly  stated  in  a  citation  from  5  Encyc.  PI.  &  Pr., 
pp.  11,  12,  as  follows:     ''The  plea  of  contributory  negligence 
is  a  plea  in  confession  and  avoidance,  which  admits  negligence  on 
the  part  of  the  defendant,  but  seeks  to  avoid  liability  therefor  by 
alleging  that  plaintiff  was  guilty  of  negligence  which  contributed 
to  his  injury."    We  are  not  ready  to  grant  that  the  authorities 
cited  fairly  support  the  law  as  thus  laid  down,  though  obiter 
remarks  contained  in  some  of  them  probably  do.    However,  im- 
mediately following  this  quotation  is  the  statement:    "But  this 
is  not  the  rule  in  those  states  whose  codes  permit  the  defendant 
to  set  up  as  many  defenses,  whether  of  law  or  of  fact,  as  he  may 
see  fit."  Our  statute  (section  4528,  Gen.  Stat.  1901)  permits  the 
defendant  to  "set  forth  in  his  answer  as  many  grounds  of  de- 
fense,    *     *     *     as  he  may  have,  whether  they  be  such  as  have 
been  heretofore  denominated  as  legal  or  equitable,  or  both."  Not- 
withstanding this  provision,  the  pleader  may  not  rely  in  the 
same  plea   upon  absolutely  inconsistent  defenses.     He  can  not 
admit  and  deny  in  the  same  breath.    He  may,  however,  adapt  his 
pleadings  so  as  to  meet  the  possible  conditions  and  contingencies 
of  the  case  that  his  opponent  may  prove.    He  may  say:    '^I  was 
not  negligent.    I  am  wholly  innocent  in  that  matter.    It  is  pos- 
sible, however,  that  you  may  be  able  by  your  indirection  or  ray 
misfortune  to  satisfy  the  jury  that  I  am  at  fault.    If  you  do,  I 
shall  assert  that  the  injury  was  occasioned  through  your  con- 
tributory negligence."    Or,  he  may  say,  "If  there  was  negligence 
which  was  the  cause  of  your  injury,  I  was  not  its  author,"  and 
at  the  same  time  say,  "If  you  were  injured  by  the  negligence  of 
any  one,  you  are  not  entitled  to  relief,  for  you  contributed  there- 
to by  your  negligence."  It  certaintly  would  be  a  very  great  hard- 
ship to  a  defendant  who  knows  that  he  was  not  negligent,  and 
knows  that  the  plaintiff  was,  to  compel  him,  at  his  peril,  to  elect 
which  of  these  defenses,  equally  good,  he  should  adopt.     These 
defenses  are  not  inconsistent.    The  truth  of  either  by  no  means 
implies  the  falsity  of  the  other.     They  may  be  availed  of  for 


758  THE   ANSWER.  [ChAP.  IV. 

the  purpose  of  presenting  the  exact  facts  in  a  given  case.  Beyend 
question,  a  defendant  might  take  advantage  of  plaintiff's  con- 
tributory negligence,  should  such  be  developed  in  the  making  of 
plaintiff's  case,  even  though  the  defendant  had  pleaded  nothing 
but  the  general  denial.  It  would  be  a  queer  rule  that  would  de- 
prive him  of  this,  had  he  added  to  such  general  denial  a  plea  of 
contributory  negligence.  The  plea  of  contributory  negligence, 
standing  alone,  would  be  one  in  avoidance,  but  it  cannot  be  said 
to  be  one  in  confession,  where  accompanied  by  a  general  denial. 
In  Railroad  Co.  v.  Hall,  87  Ala.,  708  (6  South.,  277,  4  L.  R.  A., 
710,  13  Am.  St.  Rep.,  84),  on  page  724,  87  Ala.,  and  page  284,  6 
South.,  the  law  is  announced  as  follows :  "A  denial  of  the  negli- 
gence charged,  or  plea  of  not  guilty,  although  pleaded  separately, 
repels  all  presumption  of  confession  which  arises  from  the  plea 
of  contributory  negligence  when  pleaded  alone."  In  Cole  v. 
Woodson,  32  Kan.,  272  (4  Pac,  321),  which  was  an  action  for 
slander,  where  defendant  had  denied,  and  also  pleaded  the  truth 
of  the  slanderous  words,  this  court  said  (page  276,  32  Kan.,  and 
page  322,  4  Pac.)  :  "It  would  certainly  be  a  great  hardship  to  a 
defendant  who  had  been  sued  for  slander  to  be  required  to  admit 
that  he  had  used  the  alleged  slanderous  words,  when  in  fact  he 
may  never  have  used  them,  in  order  that  he  may  be  allowed  to 
show  that  such  words  are  true.  And  it  would  equally  be  a  great 
hardship  to  him  to  be  required,  in  effect,  to  admit  that  the  words 
are  false  and  slanderous,  when  in  fact  they  may  be  true,  in  order 
to  be  allowed  to  make  the  defense  that  he  never  used  such  words. 
Our  statutes  do  not  tolerate  any  such  unjust  rules,  but  allow  a 
defendant  to  set  forth  as  many  defenses  as  he  may  have,  which 
in  slander  cases  may  be  that  he  did  not  use  the  words  charged, 
and  also  that  the  words  are  true.  And  it  makes  no  difference 
what  the  common  law  may  have  been,  or  what  may  have  been 
decided  by  courts  in  other  states,  where  their  statutes  are  differ- 
ent from  the  statutes  of  Kansas.  The  statutes  of  Kansas  must 
govern  in  actions  originating  and  instituted  within  the  borders 
of  Kansas.  And  where  they  are  clear  and  explicit,  we  need  not 
look  any  further."  In  Bell  v.  Brown,  22  Cal,  671,  on  page  678, 
the  court,  commenting  upon  the  provisions  of  a  statute  like  our 
own,  upon  a  right  it  gives  a  defendant  to  set  up  all  his  defenses, 
says:  *'It  is  an  absolute  right  given  him  by  law,  and  the  prin- 
ciple is  as  old  as  the  common  law  itself.  He  may  fail  to  prove 
one  defense,  by  reason  of  the  loss  of  papers,  absence,  death,  or 


Sec.  5]    leavenworth  light  &  heating  go.  v.  waller.         7o9 

want  of  recollection  of  a  witness,  and  yet  he  ought  not  thereby 

to  be  precluded  from  proving  another  equally  sufficient  to  defeat 

the  action  "     In  Treadway  v.  Railroad  Co.,  40  Iowa,  o26,  the 

law  is  laid  down  in  the  syllabus:    "An  admission  in  the  nature 

of  a  confession  and  avoidance  in  one  count  of  an  answer  does  not 

operate  to  admit  matter  formerly  denied  in  other  counts. 

In  Weaver  v.  Carnahan,  37  Ohio  St.,  363,  a  defendant,  when 

sued   to  recover  the  value  of  services  rendered,  may  deny  that 

the  services  were  renderd,  and  also  allege  that,  if  rendered,  their 

value  was  less  than  the  amount  claimed.      For^cases  holding 

analogous  views,  see  1  Enc.  PI.  &  Prac,  857. 

Judgment  reversed. 


DERBY  V.  GALLUP. 

5  Minn.,  119.     {I860.] 

Atw^ter  J.:  Gallup  brought  an  action  of  trover,  in  the  dis- 
trict court  of  Ramsey  County,  against  Derby  &  Day,  for  the  tak- 
ing  and  conversion  of  certain  personal  property,  of  which  the 
plaintiff  claimed  ownership  and  possession.  The  complaint  al- 
iened the  value  of  the  property  to  be  $2,636,  and  that  the  plain- 
tiff had  sustained  special  damages  to  the  amount  of  one  thousand 
dollars,  asking  judgment  for  value  and  damages.  ^     .  ,     , 

The  answer  contained,  first,  a  general  and  specific  denial  ot 
each  and  every  allegation  in  the  complaint.  Second,  for  a  fur- 
ther defense, the  answer  alleges,that  the  defendants  were  creditors 
of  one  C  W  Gri-gs,  and  sued  out  a  writ  of  attachment  against 
him  in  the  United  States  District  Court;  that  by  virtue  of  said 
writ  and  under  the  direction  of  the  plaintiffs  therein,  the  mar- 
shal'of  the  court  did,  on  the  15th  of  August,  1859,  levy  upon 
certain  goods,  and  take  the  same  into  his  possession,  etc. ;  that 
said  goods  were  taken  from  his  possession  by  the  plaintiff  by 
force  •  and  that,  on  the  18th  of  August,  he  levied  on  certain  goods 
described  in  the  answer;  which  takings  are  alleged  to  be  the  same 
as  those  charged  in  the  complaint.  There  was  a  verdict  for  the 
plaintiff,  on  which  judgment  was  entered  and  motion  made  to 
set  aside  the  same,  which  was  denied.  Defendants  appeal  from 
the  order  denving  the  motion  and  judgment. 

The  first  question  presented  is,  as  to  the  admissibility  of  the 
two  separate  defenses  set  up  in  the  answer.    The  judge  charged 


760  THE   ANSWER.  [ChAP.  IV. 

the  jury  that  the  taking  was  admitted  by  the  pleadinjxs,  to  which 
the  defendants  excepted.  If  both  defenses  can  stand,  it  is  evi- 
dent the  charge  was  erroneous,  otherwise,  it  was  correct.  These 
pleas  are  clearly  inconsistent  with  each  other.  Under  the  old 
system  of  pleading,  cases  may  be  found  where  analogous  pleas 
have  been  sustained.  In  Shuter  v.  Page,  11  Johns,  196,  non 
cepit,  and  property  in  the  defendant  was  pleaded  in  action  of 
replevin.  The  pleas  were  sustained — the  court,  in  its  opinion, 
not  deciding  the  pleas  were  not  inconsistent,  but  stating  that 
''courts  have  allowed  pleas,  in  many  instances,  apparently  as 
inconsistent  as  those  in  the  present  case."  Even  under  the  old 
system  of  pleading,  it  is  difficult  to  perceive  how  such  a  plea 
could  be  sustained.  But  the  cases  in  which  similar  pleas  have 
been  sustained  have  arisen  under  statutes  (so  far  as  we  have  ex- 
amined) similar  to  that  of  4  Anne,  16,  §  4,  which  provides  that 
"it  shall  be  lawful  for  any  defendant  or  tenant,  in  any  action  or 
suit,  or  for  any  plaintiff  in  replevin,  in  any  court  of  record,  with 
leave  of  the  court,  to  plead  as  many  several  matters  thereto  as 
he  shall  think  necessary  for  his  defense."  The  code  does  not  au- 
thorize such  pleading,  nor  any  fictitious  pleading;  and  the  de- 
cision of  this  question  must  depend  upon  the  construction  to  be 
given  to  the  provisions  of  the  code  on  the  subject  of  pleading. 

The  authorities  under  the  code  upon  this  point  are  conflicting. 
Among  those  sustaining  the  principle  here  contended  for,  see 
Lansing  v.  Parker,  9  How.  Pr.  R.,  288 ;  Hollenbeck  v.  Clow,  id. 
289 ;  Hackley  et  al.  v.  Ogmun,  10  How.  Pr.  R.,  44;  Stiles  v.  Com- 
stock,  9  How.  Pr.  R.,  48 ;  and  contra.  Roe  v.  Rogers,  8  How.  Pr. 
R.,  356;  Arnold  v.  Dimon,  4  Sandf.,  680;  Schneider  v.  Schultz, 
id.  664 ;  Lewis  v.  Kendall,  6  How.  Pr.  R.,  59 ;  Ormsby  v.  Douglas, 
2  Abb.  Pr.  R.,  407.  It  is  not  difficult  to  understand  how  these 
contradictory  decisions  have  occurred  under  the  code.  They 
are  the  result,  on  the  one  hand,  of  a  desire  to  adapt  the  former 
system  of  pleading  to  the  provisions  of  the  code,  and  to  recognize 
the  binding  force  of  authorities  under  that  system;  and,  on  the 
other,  to  make  the  present  system  of  pleading  conform  to  the 
provisions  of  the  code  in  its  spirit,  as  well  as  letter,  ignoring,  if 
need  be,  to  effect  this  object,  decisions  which  might  have  weight 
under  the  former  system.  And  I  cannot  but  here  remark,  that 
had  there  been  a  disposition  manifested  by  all  the  courts,  in  the 
states  where  the  code  has  been  adopted,  to  co-operate  in  giving 
full  force  and  effect  to  the  changes  introduced  by  it,  instead  of 


Sec.  5]  derby  v.  gallup.  761 

adhering  with  such  pertinacity  to  the  former  system,  and  ham- 
pering the  new  with  restrictions  contrary  to  its  manifest  intent, 
the  code  would  have  become  more  effective  in  the  administration 
of  justice,  or,  at  least,  its  merits  and  demerits  would  have  been 
more  satisfactorily  tested.  It  may  still  be  an  open  question 
whether  the  system  embraced  in  the  code  shall  prove  more  suc- 
cessful in  eliminating  truth  from  error  than  that  which  formerly 
obtained,  but  so  long  as  it  prevails,  it  should  be  administered 
by  the  courts  in  accordance  with  its  letter  and  spirit,  and  so  as  to 
carry  out,  as  far  as  practicable,  the  intent  of  its  framers. 

Referring,  then,  to  the  code,  we  find  that  one  of  the  most  im- 
portant changes  effected  by  it,  is  the  abolition  of  all  fictitious 
pleading,  and  requiring  facts  to  be  stated,  whether  as  constitut- 
ing the  cause  of  action,  or  ground  of  defense.  In  regard  to  the 
complaint,  the  principle  is  stated  in  direct  terms,  the  plaintiff 
being  required  to  state  ''the  facts  constituting  the  cause  of 
action;"  and,  although  the  language  in  regard  to  the  answer  is 
not  precisely  the  same,  yet  it  is  entirely  clear  that  the  intent  of 
the  code  is  to  allow  the  defendant  to  plead  only  the  facts  consti- 
tuting his  ground  of  defense.  For  it  is  not  to  be  supposed  that 
any  advantage  is  to  be  given  to  the  defendant  over  the  plaintiff 
in  pleading,  and  the  answer  is  required  to  be  verified  whenever 
the  complaint  is.  The  paramount  object  of  the  change  effected 
by  the  code  is  to  require  truth  in  pleading.  If  this  could  be  com- 
pletely attained  much  of  the  cumbrous  machinery  of  courts  could 
be  dispensed  with,  jury  trials  would  no  longer  be  necessary,  and 
nothing  would  be  required  save  the  application  of  principles  of 
law  to  the  facts  stated.  But,  if  absolute  truth  in  pleading  be  un- 
attainable, courts  may  at  least  prevent  parties  from  spreading 
upon  the  record  pleas  which  prove  their  own  falsity,  or  from  de- 
riving advantage  from  such  as  are  inconsistent  with  themselves. 
It  is  true  the  code  provides  that  "the  defendant  may  set  forth  by 
answer  as  many  defenses  as  he  shall  have;"  but  this  provision 
must  be  understood  with  the  restriction  that  those  defenses  must 
be  true — that  they  must  be  such  as  the  facts  to  be  proved  will 
sustain.  The  object  of  the  provision  is  not  to  enable  the  defend- 
ant to  defeat  the  action  at  all  hazards,  but  to  afford  him  the  op- 
portunity of  pleading  such  facts  as  actually  exist,  or  can  be 
proved,  constituting  a  defense.  To  hold  otherwise  would  be  in 
direct  conflict  with  the  manifest  intent  of  this  system  of  plead- 
ing, and  lead  to  the  most  serious  abuses. 


762  THE  ANSWER.  [ChAP.  IV. 

In  the  case  at  bar,  the  defendants  have  denied,  in  the  first 
place,  every  allegation  of  the  comp-laint,  thus  putting  in  issue 
both  the  right  of  property  in  the  plaintiff,  and  the  taking  of  the 
goods  by  the  defendant.  This  plea,  if  true,  constitutes  a  perfect 
defense  to  the  action.  The  taking  of  the  goods  constituted  the 
gist  of  the  action,  and  from  the  nature  of  the  case,  the  defend- 
ants must  know  whether  the  plea  denying  the  taking  was  true  or 
false.  If  true,  no  other  defense  was  necessary,  and  even  had 
another  or  others  existed,  consistent  with  this,  it  would  have  but 
encumbered  the  record  with  useless  issues  to  plead  them,  though 
in  such  case  permissible.  But  the  defendants,  in  their  second 
plea,  expressly  admit  the  taking  the  goods,  alleging  them  to 
belong  to  one  Griggs,  and  justify  the  taking  under  process.  The 
only  part  of  this  plea,  inconsistent  with  the  former,  is  that  in 
relation  to  the  taking  of  the  property.  The  allegation  that  the 
property  belonged  to  Griggs,  and  that  in  regard  to  the  value,  are 
not  in  conflict  with  the  previous  denials.  But  in  regard  to  the 
taking,  it  is  obviously  impossible  that  both  pleas  should  be  true, 
and  no  process  of  legitimate  reasoning  can  make  them  appear 
consistent.  If  the  same  weight  is  to  be  allowed  to  the  admission, 
as  to  the  denial,  of  the  taking,  it  leaves  them  equally  balanced, 
or,  rather,  the  one  would  destroy  the  other,  leaving  the  charge 
in  the  complaint  undenied.  But,  in  fact,  the  admission  of  the 
taking  is  entitled  to  more  weight  than  the  denial,  for  it  is  a 
familiar  rule  of  pleading,  that  each  party's  pleading  is  to  be 
taken  most  strongly  against  himself,  and  most  favorably  to  his 
adversary.  And  thus,  I  think,  the  plaintiff  is  entitled  to  the 
benefit  of  the  admission  of  the  taking,  as  the  pleas  stand,  and 
that  there  is  no  necessity  for  a  motion  to  strike  out,  or  to  compel 
the  party  to  elect  by  which  he  will  abide. 

The  reasoning  by  which,  in  the  cases  above  cited,  similar  pleas 
have  been  sustained,  is  to  my  mind  entirely  unsatisfactory,  and 
ignores  the  true  principles  of  pleading,  as  established  by  the 
code.  The  learned  justice  (Shankland)  who  delivered  the 
opinion  in  Stiles  v.  Comstock,  has  made  an  able  plea  for  the 
defendant,  and  showed,  perhaps,  that  the  principle  there  con- 
tended for  was  recognized  under  the  old  system,  though  his  argu- 
ment seems  entirely  to  overlook  the  idea  that  truth  is  essential  to 
a  pleading  under  the  code.  He  supposes  that  the  plaintiff  may 
prove  a  cause  of  action  which  never  actually  existed,  and  that 
the  defendant  should  be  permitted  to  frame  his  plea  to  meet  such 


Sec.  5]  derby  v.  gallup.  763 

supposable  case,  and  also  to  deny  the  actual  existence  of  the  fact 
alleged.  It  is,  perhaps,  sufficient  to  remark,  that  general  rules 
of  pleading  cannot  be  framed  to  meet  these  extreme  and  excep- 
tional cases;  and  that,  although  a  case  might  be  supposed  where 
a  defendant  would  suffer  injury  by  the  commission  of  perjury 
against  him,  the  evil  would  be  far  greater  to  allow  him  to  deny 
an  actual  fact,  and  yet  to  derive  the  same  advantage  from  a  plea 
admitting  the  existence  of  the  fact.  I  cannot  perceive  upon  what 
principle  this  rule  of  pleading  can  obtain,  unless  it  be  held  that 
the  code  was  designed  to  furnish  the  defendant  with  the  means 
of  defeating  his  adversary,  per  fas  aut  nefas.  We  have  to  some 
extent  recognized  the  rule  here  adopted,  in  Mason  &  Craig  v. 
Ileyward,  3  Minn.  (182),  and  Bergfield  v.  McClung,  etc.,  4  Minn 
(148).     *     *     * 

Judgment  affirmed* 

♦See,  also,  discussion  of  this  subject  in  Bank  v.  Carter,  13  Wasli.  281. 


CHAPTER  V. 

THE  REPLY. 

Code  Provisions: 

lieply;  what  to  contain. — \Vher('  the  answer  contains  a  counter- 
claim, the  plaintiff,  if  he  does  nut  demur,  may  i*eply  to  the  coun- 
ter-claim. The  reply  must  contain  a  t;eneral  or  spceific  denial 
of  each  material  alle^'ation  of  the  counter-claim,  controverted  by 
the  plaintiff,  or  of  any  knowledpe  or  information  thereof  suf- 
ficient to  form  a  belief;  and  it  may  set  forth  in  ordinary  and 
concise  languaj;e,  without  repetition,  new  matter  not  ineunsistent 
with  the  complaint,  constituting  a  defense  to  the  counter-claim. 
—N.  Y.  Code  Civ.  Proc,  §  514. 

Judgment  upon  failure  to  reply. — II'  the  plaintiff  fails  to  n-j^ly 
or  demur  to  the  counter-claim,  the  defendant  may  apply,  ui)on 
notice,  for  judgment  thereupon;  and,  if  the  ease  fe(|iiires  it,  a 
reference  may  be  ordered,  or  a  writ  of  inquiry  may  be  issued,  as 
prescribed  in  chapter  eleventh  of  this  act,  where  the  plaintiff 
applies  for  judjjrment. — lb.  §515. 

Cases  wlicre  the  court  may  require  a  reply. — Where  an  answer 
contains  new  matter,  constituting  a  defense  by  way  of  avoidance, 
the  court  may,  in  its  discretion,  on  the  defendant's  application, 
direct  the  plaintiff  to  reply  to  the  new  matter.  In  that  case, 
the  reply,  and  the  proceedings  upon  failure  to  reply,  are  subject 
to  the  same  rules  as  in  the  case  of  a  counter-claim. — lb.  §  516. 

plaintiff  may  set  forth  several  avoidances  in  rtply. — A  reply 
may  contain  two  or  more  distinct  avoidances  of  the  same  defense 
or  counter-claim;  but  they  must  be  separately  stated  and  num- 
bered.—/Z>.  §  517. 

Reply  and  demurrer  to  answer. — The  plaintiff  may  demur  to 
one  or  more  defenses  set  up  in  the  answer,  stating  in  his  de- 
murrer the  grounds  thereof ;  and  where  the  answer  contains  new 
matter,  the  plaintiff  shall  reply  to  such  new  matter  within  such 
time  as  the  court  by  rule  or  otherwise  shall  require,  denying  gen- 
erally or  specifically  the  allegations  controverted  by  him,  or  any 
knowledge  or  information  thereof,  sufficient  to  form  a  belief, 
and  he  may  allege  in  ordinary  and  concise  language  and  without 

764 


Chap.  V.]      puget  sound  iron  co.  v.  worthington.  765 

repetition  any  new  matter  not  inconsistent  with  the  petition,  con- 
stituting a  defense  to  the  new  matter  in  the  answer.  To  this 
reply  the  defendant  may  demur  within  three  days  after  the  same 
has  been  filed.— A'.  S.  liiS9  (Mo.),  §  607. 

Defendant  entitled  to  judgment,  when.—U  the  answer  con- 
tains a  statement  of  new  matter,  and  the  plaintiff  fail  to  reply  or 
demur  thereto  within  the  time  prescribed  by  the  rule  or  order  of 
the  court,  the  defendant  shall  have  such  judgment  as  he  is  en- 
titled to  upon  such  statement:  and  if  the  ca.se  require  it,  a  writ 
of  inquiry  of  damages  may  issue.— /6.  §608. 

Replies  and  demurrers,  by  what  rule  governed.— The  reply 
shall  U-  governed  by  the  rules  prescrilx-d  in  relation  to  answers; 
and  d.inurrers  to  the  aruswer  or  reply  shall  be  governed  by  those 
prescribed  in  n'lation  to  demurrers  to  petitions,  where  they 
apply ;  and  when  a  replication  is  filed  the  cause  .shall  be  deemed 
at  issue.— /6.  §  609. 


PUGET  SOUND   1K<>N   CO.  v.   WORTUlNCiTON. 
2  Wash.  Ttr.,  172.     [18Sr,.\ 

Turner,  J. :  Th.-  action  in  the  court  b.-low  was  brought  by  the 
appellees  againi5t  th.'  appellant  fnr  tli.-  bnach  of  a  contract  de- 
scribed as  follows: 

"Said  defendant  entered  into  a  contract  with  plaintiffs  by  the 
terms  of  which  it  was,  among  other  things,  mutually  agreed  to 
the  effect  that  said  defendant  should  cut,  cord,  and  furnish  to 
the  plaintiffs,  within  a  rea.sonable  tinn'  thereafter,  all  the  cord- 
wood  on  the  lands  known  a.s  the  'Bishop  and  Johnson  land,' 
situate  at  Irondale,  JetTerson  County,  aforesaid,  for  the  purpose 
of  the  whole  thereof  being  made  and  converted  int<j  good  and 
merchantable  charcoal  by  plaintitTs;  and  .said  defendant  further 
agreed  to  pay  the  plaintiffs  eight  cents  for  each  and  every  bushel 
of  said  charcoal  delivered  by  plaintiffs  to  defendant,  and  to 
charge  plaintiffs  for  said  wood  at  the  rate  of  one  dollar  for  every 
forty  bushels  of  charcoal  delivered  as  aforesaid,  and  no  more." 

The  complaint  alleges  performance  on  the  part  of  the  plain- 
tiffs with  all  the  conditions  of  the  contract,  and  alleges  as  a 
breach  by  the  defendant  the  refusal  to  deliver  the  balance  of  the 


766  THE  REPLY.  [ChAP.  V. 

wood  described  in  the  contract,  some  4,000  cords,  to  be  made  into 
charcoal  by  the  plaintiffs. 

Here  defendant  in  its  answer  denies  all  the  material  allega- 
tions of  the  complaint.  For  an  affirmative  defence  it  sets  out  in 
kaec  verba  a  written  contract  entered  into  between  the  plaintiff's 
and  itself,  on  the  day  alleged  in  the  complaint  as  the  day  on 
which  the  contract  sued  on  was  made,  whereby  it  was  to  deliver 
to  the  plaintiffs,  to  be  made  up  into  charcoal,  10,000  cords  of 
wood,  more  or  less;  alleges  that  no  other  contract  than  the  con- 
tract thus  set  out  was  ever  entered  into  between  plaintiff's  and 
itself,  and  alleges  that  it  has  fully  performed  the  conditions  of 
said  contract  by  delivering  to  the  plaintiff's  some  13,000  cords  of 
wood. 

The  plaintiffs  replied  to  the  answer  as  follows : 

' '  That  at  the  time  of  the  making  of  the  said  written  agreement, 
and  thereafter,  it  was  mutually  agreed  by  and  between  the  plain- 
tiffs and  defendant,  in  addition  to  said  \vriting,  and  as  a  part  of 
the  contract  sued  on  in  this  action,  that  defendant  should  furnish 
plaintiffs,  within  a  reasonable  time,  and  plaintiff's  should  manu- 
facture into  charcoal,  and  deliver  at  the  price  named  in  the  said 
writing,  all  the  cord-wood  then  cut  and  corded,  or  standing,  or 
lying,  or  being  upon  all  the  lands  known  as  the  'Bishop  and 
Johnson  lands,'  situated  at  Irondale,  aforesaid." 

The  defendant  demurred  to  this  reply,  which  demurrer  was 
overruled.  The  parties  then  went  to  trial,  and  the  trial  resulted 
in  a  verdict  for  plaintiffs.  The  cause  is  here  by  appeal  under 
the  act  of  1883. 

The  first  matter  assigned  by  the  appellant  as  error  which  we 
shall  notice  is  the  failure  of  the  court  to  sustain  the  demurrer  to 
the  reply.  The  appellant  attacks  the  reply  as  a  departure  in 
pleading.  The  appellees  attempt  to  sustain  it  as  a  new  assign- 
ment of  the  contract  described  in  the  complaint.  In  our  .judg- 
ment, it  is  neither.  It  is  not  a  departure,  because  it  is  perfectly 
consistent  with  the  complaint.  It  is  not  a  new  assignment,  be- 
cause there  is  no  such  thing  as  a  new  assignment,  as  that  term 
was  understood  at  common  law,  under  our  system  of  pleading. 
If.  under  our  system,  it  becomes  necessary  for  a  party  to  restate 
his  cause  of  action,  he  may  do  so  by  amendment.  The  reply 
must  traverse,  or  confess  and  avoid.    Code,  §  86. 

But  the_reply  was,  for  the  purposes  of  the  action,  wholly  im- 
pertinent.   It  should  have  been  stricken  from  the  cause.    It  was 


Chap.  V.]      puget  sound  iron  go.  v.  worthington.  767 

no  more  impertinent,  however,  than  the  affirmative  defence  which 
jt  professed  to  reply  to.  Under  our  system  of  pleading  the 
technical  learning  of  the  common-law  pleader  is  of  but  little  ac- 
count. The  plaintiff  is  required  to  state  his  cause  of  action  with 
sufficient  particularity  to  apprise  the  defendant  of  its  true  char- 
acter. The  defendant  in  his  answer  must  deny  the  facts  alleged 
in  the  complaint,  or  he  must  state  new  matter  in  avoidance  or  by 
way  of  counter-claim.  If  these  several  pleadings  are  not  accu- 
rate and  full,  the  party  required  to  take  the  next  step  may  have 
them  made  more  definite  and  certain  before  he  proceeds.  With 
these  fundamental  principles  kept  in  view,  it  would  seem  easy 
for  a  person  of  ordinary  intelligence  to  frame  correct  pleadings. 
X°  this  case  the  defendant  denied  all  the  matters  averred  in  the 
complaint.  His  affirmative  defence  cannot  be  construed  as  doing 
more;  neither  the  supposed  affirmative  defence,  nor  the  reply  to 
it/add  anything  to  the  issue,  which  was  fully  and  completely 
made_u2_when  the  defendant  denied  that  it  made  the  contract 
described  in  the  complaint.  It  added  nothing  to  that  denial  to 
set  out  affirmatively  the  version  of  the  contract  which  defend- 
ant insisted  was  the  true  one.  Seeking  no  affirmative  relief,  it 
made  no  difference  what  other  contract  it  had  made  with  the 
plaintiff,  if  it  had  not  made  the  one  sued  on.  It  is  a  matter  of 
surprise  to  the  court  that  counsel  of  so  much  ability  and  in- 
dustry as  those  engaged  in  this  cause  should  have  overlooked 
these  plain  and  obvious  principles  of  code  pleading.  The  court 
properly  overruled  the  demurrer  to  the  reply. 

Judgment  affirmed. 


Aj&-i      (T^SX-*^^--^-^-- 


CAMPBELL  V.  BANNISTER. 
79  Ey.,  205.     [1880.] 

Chief  Justice  Cofer  delivered  the  opinion  of  the  court. 

This  was  an  action  for  slander  in  charging  the  plaintiff  with 
the  crime  of  arson.  The  defendant,  by  his  answer,  admitted  that 
he  spoke  the  words  charged,  but  averred  they  were  spoken  to  his 
wife  in  the  privacy  of  his  family,  and  were  accidentally  over- 
heard by  another  person  in  the  house,  but  not  known  to  be  within 
hearing,  and  thus,  without  having  been  so  intended  by  him,  be- 
came public.    And  he  further  averred  that  this  was  done  without 


768  THE  REPLY.  [ChaP.  V. 

malice,  and  was  the  wronj,'  and   injury  complained  of  in   the 
petition. 

In  his  reply,  the  plaintiff  averred  that  it  was  not  true  that  the 
defendant  spoke  the  words  complained  of  under  the  circum- 
stances stated  in  the  answer ;  and  he  also  averred  that  the  defend- 
ant had  often  spoken  the  wordSj  or  the  substance  of  them,  in  the 
presence  of  divers  persons. 

With  the  pleadings  in  this  condition,  the  parties  went  to  trial, 
which  resulted  in  a  verdict  for  the  plaintiff  for  one  cent  in  dam- 
ages, and  his  motion  for  a  new  trial  having  been  overruled,  he 
has  appealed. 
^;3LivviA/v**Y^     One  whose  house  has  been  set  on  fire  may  communicate  to  his 
,^^  ,  \  family,  under  proper  precautions,  and  without  malice,  his  sus- 

»_-3  -v>jLA-j  /picions  as  to  who  the  incendiar\'  is,  and  he  will  not  be  responsible 
X5tJtr^        'to  a  person  falsely  accused  for  so  doing. 

If  he  be  sued,  the  fact  that  he  repeated  the  accusation  to  others 
may  be  given  in  evidence,  for  the  purpose  of  proving  that  the 
communication  to  his  family  was  malicious,  and  that  was  the 
only  purpose  for  which  evidence  of  other  publications  of  the 
defamatory  words  was  admissible  in  this  case. 

The  plaintiff,  having  traversed  the  allegations  of  the  answer. 
liad jip_  ngEt  to  recover  for^jn^^other  publication  than  that  ^(\- 
mitted  in  the  answer^ 


If  that  was  not  the  publication  for  which  he  sued,  he  should 
have  filed  an  amended  petition,  setting  forth  his  cause  of  action 
more  minutely  and  circumstantially,  and  could  not,  by  anything 
contained  in  his  reply,  draw  the  defendant  away  from  the  par- 
ticular publication  admitted  in  the  answer.  This  could  only  be 
done  by  a  new  assignment. 

A  new  assignment  is  not,  properly  speaking,  a  replication, 
since  it  does  jiQljrgfess_to_jreply_to_anything  contained  in  the 
defendant 's  answer^  but  throws  aside  as  useless  a  previous  plead- 
ing, or,  rather,  re-states,  in  a  more  minute  and  circumstantial 
manner,  the  cause  of  action  alleged  in  the  petition  which  the  de- 
fendant, through  mistake  or  design,  has  omitted  to  answer.  It 
is,  therefore,  in  the  nature  of  a  new  petition,  or,  rather,  it  is  a 
more  precise  and  particular  repetition  of  the  matter  contained 
in  the  original  petition,  so  as  to  indicate  that  the  plaintiff  is 
suing  for  a  matter  other  than  that  to  which  the  answer  relates. 
(Chitty  on  PL,  p.  653.)     *     *     * 

Judgment  reversed. 


%^  <&^. 


Chap.  V.]  school  district  v.  caldwell.  769 

SCHOOL  DISTRICT  v.  CALDWELL. 

16  Neb.,  68.     [1884.] 

Reese,  J. :  This  action  was  brought  by  the  plaintiff  in  the  dis- 
trict court  of  Adams  county,  to  restrain  the  defendants  from  sell- 
ing the  real  estate  described  in  the  plaintiff's  petition.  The 
facts  are  as  follows:  On  the  eighteenth  day  of  October,  1877, 
the  plaintiff  recovered  a  judgment  against  W.  W.  Fitzpatrick. 
J.  M.  Fitzpatrick,  and  J.  S.  ]\lclntyre,  in  the  district  court  of 
Lancaster  county,  for  the  sum  of  $1,053.33,  and  on  the  tenth 
day  of  December  of  the  same  year,  a  transcript  of  said  judgment 
was  filed  in  the  office  of  the  clerk  of  the  district  court  of  Adams 
county.  On  the  thirteenth  day  of  January,  1878,  J.  S.  Me- 
Intyre,  one  of  the  judgment  defendants,  sold  and  conveyed  the 
real  estate  in  dispute  to  A.  F.  Boston,  who,  on  the  fourteenth  day 
of  November,  1879,  conveyed  it  to  R.  A.  Batty,  and  he  after- 
wards conveyed  it  to  the  plaintiff.  On  the  fourteenth  day  of 
August,  1882,  an  execution  was  issued  on  said  transcript  and 
levied  on  said  real  estate  as  the  property  of  said  J.  S.  Melntyre, 
the  sale  of  which  the  plaintiff"  enjoined.  Upon  trial  in  the  dis- 
trict court  the  injunction  was  dissolved  and  the  case  dismissed. 
The  plaintiff  appeals  to  this  court. 

The  petition  alleges  that  said  judgment  is  not  a  lien  on  said 
real  estate,  for  the  reason  that  the  instrument  purporting  to  be 
a  transcript  of  the  judgment  rendered  by  the  district  court  of 
Lancaster  county  does  not  show  that  the  court  had  any  jurisdic- 
tion over  the  said  J.  S.  lilclntyre,  and  that  the  pretended  judg- 
ment was  not  docketed  on  the  court  records  of  Adams  county, 
nor  entered  in  the  general  index  of  judgments  of  said  court,  was 
not  a  lien  on  the  real  estate  of  the  said  J.  S.  Melntyre,  and  that 
the  plaintiff  purchased  said  property  without  any  knowledge  of 
the  existence  of  said  judgment.  To  this  petition  the  defendants 
answered,  setting  up  their  judgment,  alleging  it  was  still  in 
force,  the  filing  of  the  transcript,  that  it  Avas  properly  indexed, 
and  that  at  the  time  of  the  filing  of  said  transcript  the  said 
INIcIntyre  was  the  owner  of  the  property,  and  that  their  judg- 
ment was  a  lien  thereon.  The  plaintiff  replied,  alleging  that 
said  judgment  was  fully  paid  and  satisfied  prior  to  the  issuance 
of  the  execution,  and  that  said  payment  and  satisfaction  was 
made  by  the  payment  of  $290.20  on  the  fourth  day  of  September, 

49 


770  THE  REPLY.  [ChaP.  V. 

JLa^  -  rAAXjViAiL  1878,  and  by  three  promissory  notes  executed  by  said  Mclntyre, 

^      v^^^^^^^  V      with  J.  B.  Mclntyre  as  surety,  each  of  said  notes  being  for  the 

-J  A^j^X^    sum  of  $287.33,  and  that  said  notes  were  given  and  received  in 

i^^Tcir^'-     ^^^^1  satisfaction  of  said  judgment,  and  had  been  since  paid,  in 

(^V^j"     part,  the  unpaid  notes  being  still  held  by  the  defendants.    On  the 

^^_^^_^^trial  of  the  cause  the  plaintiff  sought  to  prove  this  allegation  of 

r*  ^w^TTV^    *  the  reply,  to  which  objection  was  made  and  the  testimony  re- 

■  ^  '_Jc;^       jected.    Without  stopping  to  inquire  whether  this  question  is  or 

^  is  not  properly  before  the  court,  we  will  say  that,  if  the  fact  ex- 

^ir7Z^^\r~  ^'®*^'  ^*  ^^  clear  that  it  is  one  of  the  elements  of  the  plaintiff's 

_.  cause  of  action,  and  should  have  been  alleged  in  the  petition.  *'A 

^^^'^^^^V^'  plaintiff  can  recover  onh'  on  the  cause  of  action  stated  in  his 

^~^  *^     petition.     It  is  not  the  province  of  a  reply  to  introduce  new 

caujes_of_action.     This  can  be  done  only  by  amendment  to  the 

j^etiiion,"    Maxw.  PI.  &  Pr.,  108;  Durbin  v.  Fisk,  16  Ohio  St., 

534.    If^the  judgment  has  been  paid,  it  should  have  been  so  al,- 

jeged  in  the  petition,  so  that  the  proper  issue  could  have  been 

formed  upon  that  question^  and  tried  as  other  issues  tendered  by 

the  plaintiff  in  an  action  are  tried.    This  not  being  done,  there 

was  no  error  in  the  ruling  of  the  court.     *     *     * 

Judgment  affirmed. 


vjO 


V-  Aij^. 


WEST  V.  CAMERON. 

39  Kan.,  736.     [1888.] 

Valentine,  J. :  This  was  an  action  in  the  nature  of  eject- 
ment, and  also  to  set  aside  a  tax  deed.  It  was  brought  in  the 
district  court  of  Ellis  county,  on  March  4,  1884,  by  R.  W.  Cam- 
eron against  F.  D.  West  and  J.  C.  West,  for  the  recover}'-  of  sec- 
tion 23  (640  acres),  in  township  13,  range  19,  in  said  countj^ 
and  also  to  set  aside  a  tax  deed  upon  the  land,  executed  to  F.  D. 
West  by  the  county  clerk  of  said  county,  on  November  28,  1881, 
for  the  taxes  of  1877.  *  *  *  The  case  was  tried  by  the  court 
without  a  jury,  and  judgment  was  rendered  in  favor  of  the 
plaintiff  for  the  recovery  of  the  land,  and  in  favor  of  the  de- 
fendant, F.  D.  West,  for  the  recovery  of  the  taxes;  and  both 
sides  now  complain — the  defendant  F.  D.  West,  filing  a  petition 
in  error,  and  the  plaintiff,  Cameron,  filing  a  cross-petition  in 
error.     The  plaintiff  in  error,  defendant  below,  now  claims  that 


Chap.  V.]  west  v.  cameron.  771 

the  plaintiff  below  could  not  and  cannot  maintain  his  present 
action,  and  that  the  court  below  erred  for  the  following  reasons,  ""V,^^.,.^,,^^ 
to-wit:     *     *     *     (3)     The   defendant's  answer  to  the   plain-  rJlir^W- 
tiff's  petition  set  up  new  matter,  to  which  the  plaintiff  has  never  V>o  yo^^^r^Aou 
replied.     *     *     *  ^n/n.  Vj*^^^*-^^ 

3.  The  new  matter  set  up  in  the  defendant's  answer  did  not  ^'^^^''^^^^^ 
constitute  a  defence  to  the  plaintiff's  petition,  and  therefore  did  ""^"^^^  » , 
not  require  a  reply.  It  was  simply  that  the  defendant  had  made~)  ^  ^_^^ 
valuable  and  lasting  improvements  on  the  land,  and  that  the  ^^J^:^,^^^ 
plaintiff  had  not  tendered  the  taxes.  These  are  matters  to  be  Uv^^  -v'sxa 
adjusted  after  the  decision  upon  the  main  question  in  the  \c^a>a  ts « 
case.     *     *     *     ♦  toft  o-  *>^»y>-<! 

Judgment  reversed  (on  other  grounds).  ^*"*^  ^-^  <^^»>-i 


Lir*^      ^jKj^y  OvvtU>o  '^*r^-> 


DIX  V.  GERMAN  INS.  CO. 

65  Mo.  App..  34.     [1896.] 

RoMBAUER,  p.  J. :  *  *  *  The  case  is  in  many  respects 
peculiar.  The  plaintiff  sues  for  a  fire  loss  of  $400.  His  petition 
states  that  the  policy  was  taken  out  by  his  late  wife  on  a  dwell- 
ing house,  and  contained  a  provision  that,  in  case  of  her  death, 
the  policy  should  continue  in  force,  and  the  loss,  if  any,  be  pay- 
able to  the  one  entitled  under  the  taw  to  said  dwelling  house; 
that  his  wife  died  before  loss,  whereupon  he  as  tenant  by  the 
curtesy  became  entitled  to  the  property  insured,  and  hence  to 
the  benefit  of  the  contract  of  insurance.  The  answer  of  the 
defendant  company  does  not  set  out  the  terms  of  the  policy,  but 
among  other  defences  sets  up  a  defect  of  parties  plaintiff  in 
this,  that  the  plaintiff  was  not  the  sole  heir  of  the  assured,  but 
that  the  appellants  herein  claim  the  property  as  heirs  in  law  of 
the  assured.  The  answer  prays  that  they  be  made  parties  to  the 
suit.  The  court  thereupon  made  an  order  making  them  parties 
to  the  suit,  and  they  filed  their  answer.  This  answer  also  fails 
to  set  out  the  terms  of  the  policy,  but  avers  that  it  was  issued 
to  their  mother,  and  that  the  defendant  company,  admitting  its 
liability  to  some  one  for  the  loss,  has  paid  $350  into  court.  The 
answer  then  concludes:  "Defendants  further  .state  that  said 
insurance  policy  is  a  contract  with  said  Mary  W.  Dix  alone,  con- 


-Z^-^ 


772  TnE  REPLY.  fCn.u'.  V. 

traeting  to  pay  her  personally  $400,  if  said  buildinj,'  in  said 

vv  ^    policy  should  be   destroyed  by   fire  within  the  year  specified 

^t^  therein;  that,  said  loss  having  occurred  after  the  death  of  said 

^      W^  •  ^^^^y  ^-  ^^^'  intestate,  and  these  defendants  being  her  only  sur- 

V  '  viving  children  and  heirs,  there  being  no  administration  on  lici- 

ic2^^!2«-^  <^state,  ^°^  there  being  no  administrator  of  the  estate  of  said 

^^A      ^-^  Mary  W.  Dix,  these  defendants  alone  are  entitled  to  the  proceeds 

"^<^  .      of  said  insurance  policy,  and  the  plaintiff  has  no  interest  in  the 

"''"^'^r^^^same,  and  is  not  entitled  to  any  part  of  the  same."    The  answer 

'^''^^'^  concludes  with  a  prayer  that  the  court  may  award  to  them  the 

"""^"^  proceeds  paid  into  court. 

X  oJs^'vcW  -  rpjjg  QQ^Yt  awarded  the  fund  to  the  plaintiff.  Its  decree  is 
^>\V^»-^^'^'^**»-likewise  silent  as  to  the  terms  of  the  policy.  It  recites  that  Mary 
^^  W.  Dix  insured  the  dwelling  house  in  her  lifetime  in  the  sum  of 
$400;  that  it  was  destroyed  after  her  death;  that  the  plaintiff 
was  the  husband  of  the  assured  and  had  a  curtesy  interest  in  the 
land,  and  that  the  interpleaders  are  the  sole  surviving  children 
of  the  assured ;  that  the  defendant  company  paid  the  amount  of 
the  loss  into  court;  that  the  plaintiff  subsequently  rebuilt  the 
house  at  a  cost  exceeding  $400. 

The  appellants  claim  that  this  decree  is  erroneous  upon  the 
facts  conceded  by  the  record.  This  claim  is  not  tenable.  Conced- 
ing that  the  allegations  of  the  plaintiff's  petition  are  true, 
namely,  that  the  loss  was  payable  to  the  one  entitled  under  the 
laiv  to  the  dwelling  house,  he  was  clearly  the  person  entitled  to 
recover,  because  he  was  entitled  to  said  dwelling  house  as  tenant 
by  the  curtesy.  There  is  nothing  to  show  that  the  allegations  of 
the  plaintiff's  petition  are  untrue,  as  the  evidence  offered,  in- 
cluding the  policy  sued  upon,  is  not  before  us. 

Nor  can  the  appellants  derive  any  advantage  from  the  fact 
that  their  answer  was  not  replied  to.  The  answer  set  out  no 
new  matter  which  required  a  reply.  The  fact  that  the  appellants 
are  the  surviving  children  of  the  assured  and  her  heirs,  and  that 
no  aSministration  has  been  taken  out  on  the  estate  of  the  assured, 
even  if  true,  does  not  lead  to  the  conclusion  that  they  are  en- 
titled to  recover  upon  the  policy.  The  last  part  of  the  answer 
is  not  the  statement  of  a  fact  but  a  conclusion  of  law,  and  heiice 
is  not  admitted  by  a  failure  to  reply.  Even  if  the  contract  of 
their  mother  were  a  personal  one  on  which  her  representative 
could  proceed  for  a  loss  happening  after  her  death,  yet  the 
position  of  the  appellants  would  not  be  bettered,  since  they  are 


Chap.  V.]  dix  v.  German  ins.  co.  773 

not,  under  the  allegations  of  the  answer,  the  personal  represent- 
atives of  the  deceased.     *     *     * 

Judgment  affirmed. 

ENNIS  V.  CASE  MANUF'G  CO. 

30  Fed.  487.     [1887.] 

Thayer,  J.     This  is  an  action  at  law  for  breach  of  a  contract 
for  services.    The  contract  is  alleged  to  have  been  made  October 
1,  1884,  and  covers  services  to  be  rendered  from  January  1, 
1885,  to  December  31,  1885.     A  plea  is  interposed  to  the  effect 
that  the  contract  was  verbal,  and  was  not  to  be  performed  within  ^x^ji    .  f^.^^ 
one  year,  and  hence  is  within  the  statute  of  frauds.    By  way  of  ^^^^  -,jj^ 
reply  to  the  plea,  plaintiff  avers  that  on  the  fifteenth  of  Janu-  \__^__^^ 
ary,   1885,  the  contract  of  October  1,   1884,  was  modified  by    <S33>:-3^ 
agreement  by  striking  out  one  of  its  provisions,  and  that  as  i^,  T" /^-«o^ 
thus  modified  plaintiff  duly  performed  the  same.     To  the  reply  ^^.^,^^_^^^,J^ 
there  is  a  demurrer.     Obviously,  that  part  of  the  reply  which /^^"^^''^"^ 
alleges  a  modification  of  the  contract  on  January  15,  1885,  is  %  Xka^  oaciu 
not  a  sufficient  answer  to  the  plea  of  the  statute  of  frauds.    ll-\^  . 
the  pleader  intended  to  state  that,  in  point  of  fact,  the  contract 
described  in  his  petition  as  made  on  October  1,  1884,  was  not 
made  untTl  January  15.  1885,  and  for  that  reason  the  plea  o^^^>-       J^ 
the  statute  is  not  tenable,  then  the  reply  is  in  the  nature  of  a  ,  .   '      • 

departure  from  the  original  cause  of  action,  and  on  that  ground  I^*^v-'-\jj3Lk- 
the  demurrer  should  be  sustained.     If,  on  the  other  hand,  the  T^ 

pleader  intends  to  adhere  to  the  original  averment  that  the  con-  «^^  r^L-<_«3-oJi 
tract  on  which  he  sues  was  made  October  1,  1884,  the  plea  of  the  ^  ^.su^y,^^^ 
statute  remains  unanswered,  unless  we  construe  the  last  clause  ^^jj'x-  t-yjV 
of  the  reply  (which  is  a  general  denial)  as  intended  to  be  a  f^,.^^;^,^^;^^^^^ 
response  to  the  plea  of  the  statute.  We  think  it  evident,  ^ ^om  ^^^^^^^^^^^  ^^^^^^ 
the  form  of  the  pleading,  that  the  pleader  intended  to  allege  the  \,^;jj^^  Jl^ 
modification  of  the  contract  on  January  15,  1885,  as  a  defence  ^ .  '      ^ 

I'll  •      i  1      J       B-~V»'S»A.^  ^ 

to  the  plea  of  the  statute.    In  other  words,  we  think  he  intended    ^ 
to  say  that  the  contract  on  which  he  sues  was  made  on  January  ^^^^^  ^^^^ 
15,  1885,  instead  of  October  1,  1884,  as  at  first  alleged.     Our  ^^J^Wp..sX1; 
judgment  is,  therefore,  that  the  reply  is  bad,  as  being  a  de-  o^viXi^) 
parture  from  the  original  cause  of  action.    We  accordingly  sus-  -t^AA.  o^-viL    fj 
tain  the  demurrer.    Plaintiff  can  only  avail  himself  of  the  facts   V^'-vA^  '-^^^ 


774  THE  REPLY.  [ChAP.  V. 

stated  in  the  reply  (if  they  constitute  a  defence  to  the  plea)  by 
an  amendment  of  his  petition.  The  petition  cannot  be  amended 
by  virtue  of  allegations  contradictory  thereof  contained  in  the 

MOLLYNEAUX  v.  WITTENBERG. 

39  Neb.  547.     [1894.] 

Harrison,  J.     *     *     Having  concluded   that  the  agreement 
was  valid,  then  it  follows  that  the  petition  declaring  upon  it 
stated  a  cause  of  action,  there  being  alleged — First,  a  valid  con- 
tract; second,  a  breach  of  it;  and,  third,  the  damages  arising 
from  such  breach.  The  answer  admits  almost  everything  pleaded 
in  the  petition,  possibly  denying  that  plaintiff  suffered  any  dam- 
age, alleges  matter  in  avoidance,  and  sets  up  affirmatively  the 
* 'waiver."    The  reply  meets  the  portion  of  the  answer  founded 
upon  the  waiver  by  affirmatively  stating  that  the  defendants 
have  failed  to  comply  with  the  provisions  of  the  waiver;  and  it 
is  of  this  allegation  in  the  reply  that  complaint  is  made  by  de- 
fendants, they  contending  that  it  was  an  attempt,  by  plaintiff, 
to  introduce  a  new  c&use  of  action  by  his  reply,  different  from 
that  stated  in  the  petition.    If  the  recovery,  if  any,  by  plaintiff 
on  a  trial  of  the  case,  would  be  founded  upon  the  waiver,  and 
for  a  breach  of  its  conditions  alone,  this  position  is  a  true  one. 
On  the  other  hand,  if  the  matter  alleged  in  the  reply,  relating 
to  the  waiver  set  up  in  the  answer,  and  constituting  a  defence 
to  it,  was  not  inconsistent  with  the  petition,  then  it  is  not  a  true 
position.    After  a  careful  examination  of  the  pleadings,  we  are 
"^    satisfied  that  the  action  of  the  plaintiff  was  necessarily  founded 
/^^^^^^"^  'upon  the  original  agreement  of  defendants  not  to  use  the  prop- 
.  .  \  '^^<>^  €rty  for  hotel  purposes,  and  its  breach,  the  waiver  being  merely 
~J^\^.  tw-    collateral  to  the  original  contract  and  incident  to  it,  and  purely 
'IV^^^^     a  matter  of  defence ;  that  the  cause  of  action  set  up  in  the  peti- 
^^^ v^    tion  was  complete  without  alleging  the  waiver,  and  negativing 
^,^j,3^^^^32l  ^  ^^®  or  effect ;  that,  when  the  waiver  was  alleged  in  def end- 
_ants^  answer  as  matter  jof^  defence,  it  was  proper  and   good 
pleading  to  d^y  it,  or  affirmatively  show  by  the  reply  that  de-^ 
fendantshad,  by  their  failure  to  comply  with  some  of  its  re- 
quirements,  or  rather  by  their  violp.tion  of  such  requirements  or 


Chap.  V.]  mollyneaux  v.  wittenberg.  775 

conditioE^j_  rendered  it  of  no  value  or  foree^and  destroyed  any 
effect  it  might  otherwise  have'had  inTeTeasing  "tFie  defendant 
7rom_the_original  agreement;  and,  if  evidence  had  been  intro- 
duced which  established  the  plaintiff's  contention  as  pleaded  in 
the  reply,  the  waiver  would  have  been  fully  avoided,  and  the 
plaintiff  entitled  to  damages,  not  under  the  waiver,  but  from  the 
breach  of  the  original  contract  or  agreement,  to  which  the  waiver, 
by  its  terms,  refers  the  parties.  "A  plaintiff,  in  replying  to  new 
matter  set  up  in  an  answer,  may  allege  any  new  matter,  not 
inconsistent  with  the  petition,  constituting  a  defence  to  such 
allegations  contained  in  the  answer."  Cobbey  v.  Knapp,  23  Neb. 
579,  (37  N.  W.  485). 

Reversed  (on  other  grounds). 


CRAIG  V.  COOK. 
38  Minn.  232.     [1881.] 

Dickinson,  J.  The  only  pleadings  in  this  case  were  the  com- 
plaint and  answer.  Upon  the  trial,  the  defendants  moved  for 
judgment  on  the  ground  that  the  answer  contained  new  matter, 
which,  for  want  of  a  reply,  stood  admitted.  The  court  denied 
the  motion,  and  defendant  excepted.  The  complaint  alleges  that 
on  the  thirty-first  day  of  March,  1879,  the  plaintiff  was  lawfully 
and  peacefully  in  possession  of  a  certain  hotel  building,  (de- 
scribed), and  that  on  that  day  the  defendant  broke  and  entered 
said  house,  and  forcibly  ejected  her,  therefrom,  without  author- 
ity of  laAv,  and  struck,  beat,  and  abused  her,  and  threw  her  goods 
from  said  building  into  the  streets. 

The  answer  contains,  first,  a  general  denial  of  the  whole  com- 
plaint, and  then  further  alleges  that  the  defendant  was,  on  the 
occasion  referred  to,  and  long  had  been,  the  owner  in  fee  and 
in  actual  possession  of  the  real  estate  and  premises  described  in 
the  complaint;  that  the  plaintiff  was,  by  permission  of  the  de- 
fendant, stopping  in  the  house  as  a  mere  lodger  only;  that  at 
the  time  referred  to  in  the  complaint  the  plaintiff  forcibly  and 
unlawfully  undertook  to  evict  the  defendant  from  his  premises, 
and  to  take  possession  thereof,  and  in  so  doing,  the  plaintiff  com- 
mitted an  assault  and  battery  upon  the  defendant,  who,  in  de- 


776  THE  REPLY.  [ChaP.  V. 

fending  himself  therefrom,  used  no  more  force  than  was  neces- 
sary for  that  purpose. 

A  defendant  is  not  entitled  to  judgment  by  reason  of  the  fact 
that  new  matter  pleaded  in  the  answer  has  not  been  replied  to, 
unless  such  new  matter  constitutes  a  competent  defence.  "New 
matter  constituting  a  defence"  is  not  pleaded  by  averments 
which  merely  deny  the  allegations  of  the  complaint,  but  only 
when  they  constitute  a  statement  of  facts,  the  proof  of  which 
avoids  the  legal  conclusion  otherwise  to  be  drawn  from  the  state- 
ment of  facts  in  the  complaint.  It  is  in  the  nature  of  a  plea  of 
confession  and  avoidance.    Pom.  Rem.  &  Rem.  Rights,  §§  690-692. 

The  answer  in  this  case  does  not  contain  new  matter  con- 
stituting a  defence  to  the  action.     The  answer,  without  a  reply^ 
j)uts  in  issue  the  asserted  right  and  possession  of  the  plaintifp, 
and  the  trespass  of  the  defendant,  and  upon  such  issue  the 
^  .   plaintiff  was  entitled  t,n  po  to  the  jury.     The  plea  of  title  in 
the  defendant  is  not  inconsistent  with  a  lawful  and  exclusive 
possession  in  the  plaintiff,  and  if  admitted,  would  not  entitle 
the  defendant  to  a  judgment.     Therefore,  the  court  was  right 
in  refusing  the  motion  for  judgment  upon  the  pleadings.     The 
court  did  not  err  in  refusing,  upon  the  trial,  to  require  the 
plaintiff  to  elect  as  between  several  causes  of  action  which  de- 
^  fendant  then  claimed  to  have  been  improperly  joined.    Assuming 
{  that  the  complaint  alleges  facts  showing  a  right  of  recovery,  both 
^  for  trespass  upon  real  property  and  for  assault  upon  the  person, 
\it  is  clear  that  the  case  is  within  the  statute  authorizing  the 
\ joining  of  causes  of  action  for  "injuries  with  or  without  force 
,to  person  and  property,  or  either."     Gen.  St.  1878,  c.  66,  Sec. 
118. 

If  any  remedy  was  desired  for  not  stating  separately  w^hat 
are  claimed  by  defendant  as  distinct  causes  of  action,  it  should 
have  been,  not  by  motion  upon  the  trial  to  compel  an  election, 
but  by  motion  at  the  proper  time  to  make  the  complaint  definite 
and  certain,  so  that  defendant  might  know  whether  the  plaintiff 
intended  to  rely  on  one  or  all  of  the  mingled  causes  of  action, 
(Colton  V.  Jones,  7  Rob.  164;)  or,  perhaps,  by  motion  for  an 
order  requiring  the  several  causes  of  action  to  be  separately 
pleaded.    *    *    * 

Judgment  affirmed. 


Chap.  V.]  state  ry.  co.  v.  district  court.  777 

STATE  EX.  REL.  RY.  CO.  v.  DISTRICT  COURT. 
79  Pac.  (Mont.)  547.     [1905.] 

Mandamus  to  compel  the  District  Court  to  reinstate  a  cause 
which  plaintiff  had  dismis.sed  pending  motion  for  judgment  on 
the  pleadings. 

HoLLOWAY,  J.,  after  stating  the  facts  delivered  the  opinion  of 
the  court: 

It  is  to  be  noted  in  the  first  instance  that  the  defendant  had 
pleaded  in  its  answer  contributory  negligence  on  the  part  of 
the  plaintiff  and  negligence  of  the  fellow  servants  of  the  plaintiff' 
as  a  special  defence.  Whether  the  defence  of  negligence  of  a 
fellow  servant  is  a  special  defence  which  must  be  pleaded  is 
unnecessary  to  be  determined  here.  The  authorities  are  conflict- 
ing upon  the  question.  But  contributory  negligence  on  the  part 
of  the  plaintiff'  in  an  action  of  the  character  of  this  one  is  such 
a  special  defence,  and  must  be  pleaded  by  the  defendant.  This 
doctrine  has  the  .support  of  an  unbroken  line  of  authorities  in 
this  state  from  Iligley  v.  Gilmer,  3  Mont.  90,  35  Am.  Rep.  450, 
to  the  recent  case  of  Nord  v.  Boston  &  Montana  C.  C.  &  S.  M. 
Co.,  30  Mont.  48,  (75  Pac.  681).    See,  also.  2  Current  Law,  1007; 

5  Enc.  Pleading  &  Practice,  1,  and  ca.ses  cited.  The  pleading  of 
this  defence  constituted  new  matter  within  the  meaning  of  sec- 
tion 720  of  the  Code  of  Civil  Procedure,  as  amended  by  an  act 
of  the  Legislature  approved  February  22,  1899  (Sess.  Laws  1899, 
p.  142)  and  any  mere  anticipatory  denials  in  the  complaint  of 
the  facts  constituting  this  special  defence  were  insufficient   (L. 

6  N.  R.  Co.  V.  Paynter's  Admin.  (Ky.)  82  S.  W.  412),  and  the 
failure  to  reply  to  such  allegations  of  new  matter  was  an  admis- 
sion on  the  part  of  the  plaintiff  of  the  truth  of  the  facts  therein 
set  forth,  if  those  facts  were  sufficiently  pleaded.     *     *     * 

Writ  iss-ued. 


SNODGRASS  v.  HUNT. 

15  Ind.  274.      [I860.] 

Davison,  J.  Hunt  sued  the  appellants,  who  were  the  defend- 
ants, for  an  assault  and  battery.  The  complaint  contains  two 
counts.  1.  That  on  the  day  of  November,  1856,  the  de- 
fendants assaulted,  beat,  and  wounded  the  plaintiff,  whereby  he 


778  THE  REPLY.  [ChAP.  V. 

is  damaged,  &c.  2.  That  theretofore,  on  November  21,  185G,  the 
defendants  unlawfully,  and  with  force,  &c.,  committed  an  as- 
sault on  the  plaintiff,  and  him,  the  plaintiff,  did  beat,  bruise,  and 
wound,  to  his  damage,  &c.  The  defendants  answered:  1.  By  a 
general  traverse.  2.  Son  assault  demesne.  And,  3.  John 
Snodgrass,  for  separate  answer,  sets  up,  by  way  of  counter- 
claim, that  on  said  21st  of  November,  the  plaintiff,  with  force, 
&c.,  made  an  assault  on  this  defendant,  and  with  clubs,  &c.,  did 
then  and  there  beat,  bruise,  and  wound  the  defendant,  to  his 
damage,  $6,000,  for  which  he  demands  judgment  against  the 
plaintiff.  And  the  defendant  avers  that  the  assaulting,  &c.,  of 
him  by  the  plaintiff,  was  connected  with,  and  was  the  cause  of, 
the  beating  &c.,  complained  of  by  the  plaintiff. 

To  the  second  and  third  defenses,  the  plaintiff  replied  by  a 
general  denial ;  and  to  the  second,  he  also  replied,  specially,  that 
the  beating,  &c.,  in  that  paragraph  alleged,  was  excessive  and 
cruel,  and  greatly  exceeded  what  was  necessary  for  the  purposes 
of  self-defense,  &c. 

There  was  a  demurrer  to  the  second  reply,  on  the  ground 
"that  several  grounds  of  defense  are  improperly  united,  in  this; 
that  a  general  traverse,  or  de  injuria,  and  excess,  are  each  sev- 
erally replied  to  the  second  paragraph  of  the  answer,  which 
replies  are  inconsistent  with  each  other,  and  with  the  complaint, 
and  cannot  properly  be  united."  The  Court  overruled  the  de- 
murrer, and  the  defendant  excepted.  There  is  nothing  in  this 
exception.  Under  the  Practice  act  the  plaintiff  may,  in  addition 
to  the  general  traverse,  set  up  new  matter  in  avoidance  of  the 
answer,  and  may  tender  as  many  issues  as  he  pleases,  so  that  they 
are  not  inconsistent  with  the  complaint,  or  frivolous.  Zehnor 
V.  Baird,  8  Ind.  96 ;  2  R.  S.,  §  67,  p.  42.  But  the  defense  of 
excess  is,  evidently,  consistent  with  the  complaint;  because, 
though  the  plaintiff  may  have  been  guilty  of  what,  in  point  of 
law,  amounted  to  the  first  assault,  still,  if  the  beating,  &c.,  alleged 
to  have  been  in  self-defense,  was,  in  the  language  of  the  reply, 
"excessive  and  cruel,  and  greatly  exceeded  what  was  necessary 
for  that  purpose,"  the  defendants,  themselves,  became  trespas- 
sers; and,  being  so,  were  properly  charged  in  the  complaint. 

Judgment  affirmed. 


Chap.  V.]  moore  v.  granby  &  smelting  co.  779 

MOORE  V.  GRANBY  «fe  SMELTING  CO. 

80  Mo.  86.     [1883.] 

EwiNG,  C.  This  suit  was  commenced  January  13th,  1880,  by 
filing  a  petition  in  substance :  That  in  1870  the  plaintiff  was  in 
possession  of  forty  acres  of  land  in  Cherokee  county,  Kansas ; 
that  defendant,  by  one  J.  Morris  Young,  who  was  defendant's 
agent  and  superintendent  at  Orenogo,  Missouri,  applied  to 
plaintiff  to  purchase  his  interest  in  the  land,  and  thereupon 
plaintiff  sold  his  interest  to  said  Young  for  $350,  of  which 
amount  $175  was  paid,  and  the  other  $175  was  to  be  paid  when- 
ever said  Young  or  his  assigns  should  obtain  the  full  title  to  the 
land;  that  the  title  was  in  dispute,  and  consequently  it  was 
agreed  between  said  Young  and  the  plaintiff  that  the  trade  was 
to  be  kept  secret,  and  he  was  to  assist  said  Young  in  perfecting 
the  title ;  that  the  title  was  finally  settled  to  be  in  one  Joy,  and 
on  the  29th  day  of  August,  1870,  said  Young  contracted  with 
said  Joy  for  the  legal  title,  paying  $20  cash,  and  agreeing  to 
pay  the  balance  in  six  annual  payments ;  first,  Januarj-  1st,  1873 ; 
and  was  to  receive  a  deed  therefor  upon  final  payment  which 
would  be  in  January,  1879 ;  that  said  Young  all  along  acted  as 
agent  for  defendant,  who  furnished  all  the  money,  and  that  he 
immediately  transferred  said  contract  to  defendant,  and  plaintiff 
delivered  possession  of  the  land  to  defendant,  and  defendant 
has  received  a  deed,  and  that  the  balance  of  the  said  purchase 
money  "owing  to  plaintiff'  is  due  and  unpaid."  Therefore,  he 
prays  judgment  for  $175  and  interest  from  August,  1879. 

The  answer  was  a  general  denial  and  a  plea  of  the  statute 
of  limitations,  that  the  suit  was  not  commenced  within  five  years 
after  the  cause  of  action  accrued.     *     *     * 

II.  The  statute  of  limitations  Ls  insisted  on  as  a  bar  to  plain- 
tiff's recovery.  The  replication  to  the  plea  of  the  statute  simply 
denied  "each  and  every  allegation  of  new  matter  therein."  The 
plaintiff',  to  avoid  the  bar  of  the  statute,  offered  to,  and  did  read 
the  written  contract  to  show  the  terms  of  plaintiff's  obligation; 
and  other  evidence  tending  to  show  that  plaintiff  failed  to  bring 
his  suit  because  he  was  acting  under  the  directions  of  defendant's 
agent  Young,  and  awaiting  hLs  instructions,  and  depending  upon 
his  assurances  that  it  would  be  made  satisfactory,  etc.,  until  in 
1870   when  he  first  ascertained  the  defendant  had  procured  the 


780  THE  REPLY.  [ChAP.  V. 

title  to  the  land.     Jhe  defendant  insists  that  this  evidence  was 
not  admissible  under  the  replication. 

Whenever  the  plaintiff  relies  on  some  special  matter  in  his 
replication  to  the  plea  of  the  statute,  he  must  plead  it.  Angel  I 
on  Lim.,  §§292,  184;  Vassault  v.  Seitz,  31  Cal.  225;  Bliss  Code 
Plead.,  §393;  Clark  v.  Ilougham,  3  Dowl.  &  Ry.  330;  Hubbell 
v.  Fowler,  1  Abb.  Pr.  (X.  S.)  1;  2  Chitty  Plead.,  435.  In  this 
case  the  replication  was  not  sufficient  to  authorize  the  hearin<: 
of  evidence  to  the  effect,  that  by  the  fraud  or  misconduct  oL" 
defendant,  the  running  of  the  statute  was  suspended.  The  de- 
fendant miLst  have  information  as  to  the  facts  proposed  to  be 
set  up  as  a  suspension  of  the  statute,  and  the  court  erred  in 
admitting  this  evidence.     *     *     * 

Judgment  reversed. 


STERN  V.  FREEMAN. 

4  Mete.  (Ky.)  309.     [1863.] 

Judge  Bullitt  delivered  the  opinion  of  the  court: 
Freeman  brought  this  action,  and  attached  property  belonging 
to  Stern,  a  non-resident,  to  satisfy  a  note  executed  by  him  to 
the  plaintiff.  Stem  answered,  that,  *'at  the  time  of  the  execu- 
tion of  said  note,  this  defendant  was  an  infant  under  the  age  of 
21  years;"  and  this  is  the  only  defence  that  we  need  to  notice. 
Defendant's  answer  and  the  evidence  show  that  the  plaintiff 
and  defendant  were  merchant  partners  until  October  22,  1859, 
when  the  plaintiff'  sold  his  interest  in  the  concern  to  the  de- 
fendant, then  under  21  years  of  age,  in  consideration-  of  the 
note  sued  on,  and  other  notes  then  executed.  Defendant  attained 
the  age  of  21  years  in  December,  1859.  It  is  proved  by  parol 
evidence,  that,  up  to  the  time  this  action  was  brought,  in  June, 
1860,  defendant,  in  his  own  behalf,  carried  on  the  business,  sell- 
ing the  goods  and  collecting  the  debts,  that  formerly  belonged 
to  ham  and  the  plaintiff;  and  it  is  proved,  that,  in  March,  1860, 
about  three  months  after  he  attained  the  age  of  21  years,  he 
wrote  a  letter  to  Liebor,  who  owed  money  for  goods  purchased 
from  Freeman  and  Stern,  stating  that  he  "had  been  collecting 
the  debts  due  the  firm  of  Freeman  &  Stern,  and  that  he  was 


CUAP.  v.]  STERN    V,    FREEMAN,  781 

going  on  Id  the  same  business  in  his  own  name."  The  chancellor 
rendered  judgment  for  the  plaintiff,  to  reverse  which  the  de- 
fendant appeals.     *     *     * 

The  note,  having  been  executed  when  the  defendant  was  under 
2]  years  of  age,  was  voidable;  and  the  simple  statement  of  the 
fact  in  his  answer  is  sufficient.  He  was  not  bound  to  aver  that 
the  note  was  voidable,  nor  otherwise  to  state  the  law  of  the  case. 

But  the  plaintitf  contends  that  the  note  was  made  unavoidable 
by  the  ratification  of  the  defendant.  And  here  the  question 
arises,  whether  or  not  the  plaintiff  was  bound  to  aver  the  ratifi- 
cation in  his  petition,  or  by  an  amended  petition. 

The  Code  of  Practice  declares,  that,  "there  shall  be  no  reply 
except  upon  the  allegation  of  a  counter-claim  or  set-off  in  the 
answer;"  (Sec.  132),  and  that,  "the  allegation  of  new  matter 
in  the  answer,  not  relating  to  a  counter-claim  or  set-off,  *  *  * 
is  to  be  deemed  controverted  by  the  adverse  party,  as  upon  a 
direct  denial  or  avoidance,  as  the  ca.se  may  require."  (Sec.  153) 
The  question  is,  whether  or  not,  under  the  old  practice,  the 
plaintiff  could  reply  a  ratification  of  the  contract,  in  avoidance 
of  the  plea  of  infancy.  If  he  could,  he  may,  under  the  Code, 
prove  the  ratification  without  a  reply,  and  without  setting  it 
forth  in  an  amended  petition. 

Upon  this  question  there  seems  to  have  been  some  conflict  of 
opinion,  as  is  shown  by  the  cases  referred  to  in  Moor  v.  Williams, 
11  Mees.  &  Welsby.  Mr.  Chitty,  however,  without  referring  to 
any  conflict  of  opinion  upon  the  subject,  says,  that  to  a  plea  of 
infancy  in  assumpsit,  the  plaintiff'  "may  reply  to  the  whole, 
or  part,  that  the  defendant  ratified  and  confirmed  the  promise 
after  he  came  of  age."  (1  Chitty  PL,  612.)  And  again,  in 
speaking  of  replications  which  confess  and  avoid  the  plea,  he 
says,  that,  "if  infancy  be  pleaded,  the  plaintiff  may  reply  that 
the  goods  were  necessaries,  or  that  the  defendant,  after  he  came 
of  age,  ratified  and  confirmed  the  promise."  (Id.,  657.)  The 
doctrine  stated  by  Mr.  Chitty  seems  to  be  founded  upon  prin- 
ciple. The  manner  of  pleading  depends  upon  the  question 
whether  the  right  of  recovery,  in  such  cases,  is  based  upon  the 
original  contract,  or  upon  the  ratification.  If  upon  the  latter, 
it  would  have  been  necessary,  under  the  old  practice,  in  all  ac- 
tions, excepting,  perhaps,  general  assumpsit,  to  declare  upon  the 
ratification,  or  to  set  it  forth  by  a  new  assignment,  in  the  form 
of  a  replication  to  the  plea  of  infancy,  which  would  have  been, 


782 


THE  REPLY.  [ChAP.  V. 


in  effect,  declaring  anew  upon  the  ratification.  But  if  the  right 
of  recovery  is  based  upon  the  original  contract,  the  ratification, 
under  the  old  practice,  would  have  formed  matter  for  a  replica- 
tion in  confession  and  avoidance  of  the  plea. 

That  the  right  of  recovery,  in  many  if  not  all  such  cases,  is 
based  upon  the  original  contract,  and  not  upon  the  ratification, 
seems  to  be  conclusively  proved  by  the  fact,  that,  by  the  common 
law,  the  plaintiff  may  recover  upon  a  contract  made  by  the 
defendant  during  infancy,  which  he  has  ratified  by  merely  fail- 
ing to  disaffirm  it  within  a  reasonable  time  after  coming  of  age, 
(Kline  v.  Beebe,  6  Conn.,  494;  2  Kent's  Com.,  238),  since  it  is 
clear  that  a  person  cannot  be  held  liable  for  failing  to  disaffirm 
a  contract  which  he  is  not  bound  to  disaffirm ;  and,  also,  by  the 
fact  that,  by  the  common  law,  a  sale  of  land  by  an  infant  may 
be  ratified  verbally,  notwithstanding  a  statute  prohibiting  the 
sale  of  land  except  by  writing.  (Houser  v.  Reynolds,  1  Hayea, 
143;  Wheaton  v.  East,  5  Yerger's  Tenn.  E.,  41).  It  seems  clear, 
that  in  both  those  classes  of  cases  the  right  of  recovery  is  based, 
and  can  be  based  only,  upon  the  original  contract,  the  ratification 
having  no  effect  whatever,  except  to  prevent  the  defendant  from 
avoiding  his  contract. 

Probably  where  a  person,  after  coming  of  age,  has  promised 
to  pay  a  debt  contracted  during  infancy,  or  has  done  an  act 
from  which  the  law  implies  such  a  promise,  the  plaintiff  might 
declare  upon  the  new  promise,  relying  upon  the  original  con- 
sideration to  support  it.  But  he  is  not  obliged  to  do  so.  He 
may  declare  upon  the  original  contract,  and  show  the  new  prom- 
ise, like  any  other  ratification,  in  avoidance  of  the  plea  of  in- 
fancy. This  results  necessarily  from  the  fact  that  the  contract 
is  voidable  only,  and  not  void.  It  is  valid  until  disaffirmed.  No 
ratification  is  needed  to  make  it  binding.  Disaffirmance  is  needed 
to  invalidate  it.  The  plaintiff  may,  therefore,  sue  upon  it,  and 
if  the  defendant  pleads  infancy,  the  plaintiff  may  avoid  the 
plea  by  showing  a  promise,  or  other  act  of  ratification,  by  which 
the  defendant  has  deprived  himself  of  the  right  to  avoid  the 
contract.  In  such  a  case,  the  only  effect  of  the  ratification  is  to 
prevent  the  defendant  from  disaffirming  the  contract  sued  upon, 
which,  being  valid  until  disaffirmed,  clearly  forms  the  basis  of 
recovery,  the  ratification  forming  matter  of  confession  and  avoid- 
ance to  the  plea  of  infancy. 

It  may  be  proper  to  add,  that,  under  the  Code  of  Practice^ 


Chap.  V.]  stern  v,  freeman.  783 

this  question  probably  stands  upon  a  different  footing  from 
that  relating  to  an  acknowledgment  or  promise,  relied  upon  to 
save  a  claim  barred  by  limitation. 

It  follows,  from  what  we  have  said,  that  the  plaintiff  in  this 
case  had  a  right  to  prove  a  ratification  of  the  contract,  without 
averring  it  in  his  pleadings.     *     *     * 

Judgment  affirmed. 


CHAPTER  VI. 

DEMURRERS. 

Code  Provisions: 

Defendant  must  demur  or  answer. — The  only  pleading,  on 
the  part  of  the  defendant,  is  either  a  demurrer  or  an  answer. — 
N.  Y.  Code  Civ.  Froc,  sec.  487. 

When  he  may  demur. — The  defendant  may  demur  to  the  com- 
plaint, where  one  or  more  of  the  following;:  objections  thereto 
appear  upon  the  face  thereof: 

1.  That  the  court  has  not  jurisdiction  of  the  person  of  the 
defendant. 

2.  That  the  court  has  not  jurisdiction  of  the  subject  of  the 
action. 

3.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

4.  That  there  is  another  action  pending  between  the  same 
parties,  for  the  same  cause. 

5.  That  there  is  a  misjoinder  of  parties  plaintiff. 

6.  That  there  is  a  defect  of  parties,  plaintiff  or  defendant. 

7.  That  causes  of  action  have  been  improperly  united. 

8.  That  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action. — Ih.  Sec.  488. 

Demurrer  to  complaint  must  specify  grounds  of  objection. — 
The  demurrer  must  distinctly  specify  the  objections  to  the  com- 
plaint; otherwise  it  may  be  disregarded.  An  objection,  taken 
under  subdivision  first,  second,  fourth,  or  eighth,  of  section  four 
hundred  and  eighty-eight  of  this  act,  may  be  stated  in  the 
language  of  the  subdivision ;  an  objection,  taken  under  either  of 
the  other  subdivisions,  must  point  out  specifically  the  particular 
defect  relied  upon. — Ih.  §  490. 

The  defendant  may  answer  or  demur. — The  only  pleading  on 
the  part  of  the  defendant  is  either  a  demurrer  or  an  answer. — 
Mo.  E.  S.  1899,  sec.  596. 

Defendant  may  demur  for  what  causes. — The  defendant  may 
demur  to  the  petition,  when  it  shall  appear  upon  the  face  there- 
of, either :    First,  that  the  court  has  no  jurisdiction  of  the  person 

784 


Sec.  1.]  DODGE  V.  colby.  785 

of  the  defendant,  or  the  subject  of  the  action ;  or,  second,  that  the 
plaintiff  has  not  legal  capacity  to  sue;  or,  third,  that  there  is 
another  action  pending  between  the  same  parties,  for  the  same 
cause,  in  this  state ;  or,  fourth,  that  there  is  a  defect  of  parties 
plaintiff  or  defendant;  or,  fifth,  that  several  causes  of  action 
have  been  improperly  united;  or,  sixth,  that  the  petition  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action;  or,  sev- 
enth, that  a  party  plaintiff  or  defendant  is  not  a  necessary  party 
to  a  complete  determination  of  the  action. — Ih.  Sec.  598. 

Demurrer  must  he  specific. — Tlie  demurrer  shall  distinctly 
specify  the  grounds  of  objection  to  the  pleadings.  Unless  it  does 
so,  it  may  be  disregarded. — Ih.,  §  599. 


Section  1.     General  Nature  of   Demurrers. 

DODGE  v.  COLBY. 
108  N.  Y.  415.      [1888.] 

RuGER,  C.  'J.  The  defendant  demurred  to  the  complaint  in 
this  action,  and  to  each  separate  cause  of  action  stated  therein, 
upon  three  grounds,  viz:  First,  that  the  court  has  not  juris- 
diction of  the  subject  of  the  action ;  second,  that  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action; 
third,  that  causes  of  action  have  been  improperly  united,  viz., 
a  cause  of  action  for  slander  of  title,  which  is  a  transitory  action, 
with  one  for  trespass  on  lands  without  the  state,  of  which  the 
court  has  no  jurisdiction.  The  special  term  overruled  the  de- 
murrer, and  on  appeal  to  the  general  term  that  court  reversed 
the  order  of  the  special  term.  The  general  term  held  that  the 
first  and  second  counts  of  the  complaint  each  stated  a  cause  of 
action  arising  out  of  trespasses  upon  lands  situated  in  the  state 
of  Georgia,  and  that  in  respect  to  such  actions  the  courts  of 
this  state  had  no  jurisdiction,  and  therefore  sustained  the  de- 
murrer to  those  counts.     *     *     * 

We  are,  however,  unable  to  agree  with  the  general  term  in  the 
conclusion  reached  by  it  that  the  third  count  does  not  state  a 
good  cause  of  action.  "We  are  inclined  to  think  that  this  result 
was  arrived  at  through  inadvertence  in  failing  to  observe  the 
allegation  in  the  count,  that  the  statements  alleged  to  be  slander- 
50 


786  DEMURRERS.  [ChaP.  VI. 

ous  "were  false  and  defamatory,  and  were  made  and  caused  to 
be  circulated  and  published  by  the  defendant  and  his  ajjents, 
maliciously  and  with  the  intent  to  injure  the  said  plaintiff  and 
his  title  to  the  said  lands."  The  demurrer  concedes  the  truth  of 
this  allegation,  and  renders  it  improper  for  the  court  to  refer 
to  the  statements  so  alleged  to  be  false,  defamatory  and  malicious, 
as  the  foundation  of  a  claim  that  they  were  made  in  good  faith 
and  in  the  exercise  of  a  lawful  right  on  the  part  of  the  defend- 
ant to  assert  his  title  to  the  lands  referred  to.  The  statement  in 
the  count  alleged  to  have  been  made  by  the  defendant  that  his 
title  had  been  investigated  by  four  able  legal  gentlemen  who 
unanimously  concurred  in  pronouncing  the  plaintiff's  title  bad, 
was  precisely  one  of  the  statements  which  the  complaint  alleged 
to  have  been  false,  defamatory,  and  malicious,  and  the  truth 
of  which  characterization  was  admitted  by  the  demurrer.  It 
was  error,  therefore,  in  the  court  below  to  refer  to  this  state- 
ment as  proof  of  the  propriety  of  the  defendant's  claim  to  be  the 
owner  of  the  lands,  or  as  justifying,  in  any  degree  the  alleged 
slanderous  statements.  We  are  of  the  opinion  that  this  count  of 
the  complaint  substantially  complied  with  the  requirements  of 
the  rule  relating  to  the  statement  of  a  cause  of  action  for  slander 
upon  title. 

Our  conclusion,  therefore,  is  that  judgment  of  the  general 
term  should  be  affirmed,  except  in  so  far  as  it  relates  to  the  third 
count,  and  as  to  that  it  should  be  reversed,  and  that  of  the  special 
term  affirmed,  without  costs  to  either  party  upon  this  appeal. 

Judgment  reversed. 


JONES  v.  FOSTER. 
67  Wis.  296.     [1886.] 

Cassoday",  J.  The  testimony  given  upon  the  trial  is  not  all 
preserved  in  the  record.  In  fact,  it  is  conceded  that  only  a  very 
small  portion  of  it  is  preserved;  and  that  only  so  far  as  it  cov- 
ered certain  points  involved  in  the  motion  to  set  aside  the  ver- 
dict and  for  a  new  trial.  The  questions  here  presented  arise  upon 
the  pleadings  and  the  facts  are  found  by  the  special  verdict. 

1.  It  is  said  there  is  a  defect  of  parties  plaintiff,  in  the  omis- 
sion of  Cummings  Merrill,  who  was  a  partner  of  the  plaintiffs  in 


Sec.  1.]  JONES  v.  foster.  787 

making  the  contract  upon  which  the  action  is  brought,  and  con- 
tinued to  be  such  for  nearly  a  year  after,  when  he  withdrew 
from  the  firm,  and  assigned  and  transferred  all  his  interest 
therein,  including  the  contract,  to  the  plaintiffs,  to  the  knowledge 
of  the  defendants.  The  alleged  defect  appeared  upon  the  face 
of  the  complaint,  and  hence  might  have  been  raised  by  demur- 
rer, as  provided  in  Section  2649,  Rev.  Stat.     *     *     * 

Here  the  defendants,  in  July,  1881,  without  raising  any  such 
objection,  answered  upon  the  merits.  It  is  admitted  that  a  trial 
upon  the  issue  so  formed  w'as  had  in  the  fall  of  1881,  which 
resulted  in  a  verdict  and  judgment  in  favor  of  the  plaintiffs, 
which  were  set  aside,  and  a  new  trial  granted,  November  21, 
1881.  By  such  answer  and  trial  the  defendants  waived  all  ob- 
jection to  the  complaint  on  the  ground  of  defective  parties  plain- 
tiff, under  the  authorities  cited.  Some  two  months  afterwards, 
the  defendants  put  in  a  new  answer,  embodying  a  demurrer  for 
defects  of  parties  plaintiff,  as  above  indicated.  To  make  this 
available  upon  the  last  trial,  the  defendants  objected  to  any 
evidence  being  given  under  the  complaint.  The  statutes  do  not 
contemplate  a  demurrer  of  this  nature  as  being  embodied  in  an 
answer  upon  the  merits.  "The  defendant  may  demur  to  one  or 
more  of  the  several  causes  of  action  stated  in  the  complaint,  and 
answer  the  residue.^'  Section  2650,  Rev.  St.  This  clearly  im- 
plies that  he  is  not  to  do  both  to  the  same  cause  of  action.  The 
two  things  are  inconsistent.  A  demurrer  admits  the  existence 
of  every  fact  that  is  well  pleaded.  An  answer  upon  the  merits 
takes  issue  with  the  same  facts.  Even  an  objection,  by  way  of 
answer,  on  the  ground  of  a  defect  of  parties  plaintiff,  is  by  way 
of  abatement,  and  not  in  bar.  Such  a  plea  in  abatement  is 
waived  by  pleading  the  same  matter  in  bar.     *     *     * 

Judgment  affirmed* 


GRIGGS  V.  CITY  OF  ST.  PAUL. 

9  Minn.  2 16.     [186-i.] 

Wilson,  'J.  To  the  complaint  in  this  case  the  defendant  in- 
terposed a  general  demurrer.  It  becomes  necessary  for  us  there- 
fore to  inquire  whether  the  facts  alleged  in  the  complaint  show 

♦See,  also,  Fisher  v.  Scholte,  30  la.  221. 


788  DEMURRERS.  [ClIAP.  VI. 

that  the  plaintiffs  have  a  cause  of  action.  The  gist  of  the  action 
is  the  invalidity  and  worthlessness  of  certain  "certificates"  de- 
livered to  the  plaintiffs  in  payment  for  work  and  labor  by  them 
performed.  The  allegations  of  the  complaint  on  this  point  are, 
"that  by  reason  of  gross  negligence  of  said  commissioners,  and 
of  all  the  defendant's  agents  in  that  behalf,  in  causing  to  be 
made  an  estimate  of  the  whole  expense  of  such  work,  and  of  the 
proportion  to  be  assessed  and  charged  to  each  lot,  and  of  the 
number  of  cubic  yards  to  be  filled  in  and  excavated  in  front  of 
each  lot,  and  in  not  causing  such  estimate  to  be  filed  with  the 
then  city  comptroller  of  said  city,  for  the  inspection  of  the 
parties  interested,  each  and  all  of  the  said  certificates  at  the 
time  of  said  tender  and  delivery  were  utterly  worthless,  and  no 
lien  upon,  nor  collectible  out  of,  the  lots  therein  described  in 
any  manner,"  etc. 

There  is  hardly  a  single  traversable  fact  alleged.  The  state- 
ment that  said  certificates  are  worthless  and  no  lien  upon  nor 
collectible  out  of  said  lots  is  a  conclusion  of  law,  and  therefore 
not  admitted  by  the  demurrer.  "The  gross  negligence  of  the 
defendant's  agents"  does  not  necessarily  render  the  defendant 
liable  to  an  action.  The  acts  of  either  omission  or  commission 
injurious  to  the  plaintiffs  (if  they  were  such)  by  which  such 
negligence  was  manifested,  should  have  been  specifically  averred 
in  the  complaint.  They  were  part  of  the  facts  constituting  the 
plaintiff's  cause  of  action,  and  therefore  it  was  incumbent  on 
them  to  allege  and  prove  them. 

The  inference,  we  think,  to  be  drawn  from  the  language  of 
the  complaint  above  quoted  is  that  the  "estimate"  was  made, 
but  in  a  negligent  manner,  and  that  it  was  filed,  but  not  with 
the  "then"  city  comptroller.  The  point  of  time  intended  to  be 
fixed  by  the  pleader  by  the  use  of  the  language  "the  then  city 
comptroller,"  is  not  apparent,  and  as  the  object  of  this  suit  is  to 
show  the  "certificates"  to  be  void,  not  merely  less  valuable  on 
account  of  negligence  of  defendant's  agents,  the  time  of  filing 
the  "estimate"  may  be  a  material  fact,  and  it  therefore  should 
have  been  alleged.  See  Nash  v.  City  of  St.  Paul,  8  Minn.  (179) ; 
id.   (184-5). 

But  we  do  not  wish  to  here  intimate  any  opinion  on  the  ques- 
tion of  the  validitj'-  of  these  ' '  certificates. ' '  Such  question  is  not 
properly  before  us.  It  is  not  required  of  either  the  defendant  or 
the  court  to  spell  out  from  inferential  statements  or  recitals  the 


Sec.  1.]  GRIGGS  V.  city  of  st.  paul.  789 

meaning  of  the  complaint.  Every  fact  which  the  plaintiff  must 
prove  to  enable  him  to  maintain  his  action,  and  which  the  de- 
fendant has  a  right  to  controvert  in  his  answer,  must  be  dis- 
tinctly averred,  and  a  conclusion  of  law  not  justified  by  the  facts 
stated  is  irrelevant  and  nugatory.  Hall  v.  Bartlett,  9  Barb.  301 ; 
Allen  V.  Patt^^rson,  7  N.  Y.  478;  Boyce  v.  Bro^Ti,  7  Barb.  85; 
Garvey  v.  Fowler,  4  Sandf .  665 ;  Smith  v.  Leland,  2  Duer.  508-9 ; 
Jones  V.  Phoenix  Bank,  8  N.  Y.  238 ;  Lienan  v.  Lincoln,  2  Duer. 
672 ;  Laurence  v.  AVright,  id.  674-5 ;  Mann  v.  ]\Iorewood,  5  Sandf. 
564;  City  of  Buffalo  v.  Holloway,  7  N.  Y.  498;  Schenk  v.  Nay- 
lor,  2  Duer.  675. 

The  law  on  this  subject  is  very  clearly  laid  down  by  Mr. 
Justice  Duer,  in  ease  of  j\Iann  v.  Morewood,  in  the  following 
language:  "The  language  of  this  court,  and  I  believe  of  all  its 
judges,  from  the  time  the  Code  has  been  in  operation,  has  been 
uniform,  that  a  complaint  must  set  forth  all  the  material  and 
issuable  facts  which  are  relied  on  as  establishing  the  plaintiff's 
right  of  action,  and  not  the  inferences  from  those  facts  which 
under  the  advice  of  his  counsel  he  maj''  deem  to  be  the  con- 
clusion of  law.  To  draw  proper  conclusions  from  the  facts  which 
are  relied  on  as  constituting  a  cause  of  action,  or  a  valid  defense, 
is  the  exclusive  province  and  duty  of  the  court,  and  to  enable  the 
court  to  discharge  that  duty,  the  facts  themselves,  not  the  con- 
clusions that  are  supposed  to  flow  from  them,  must  be  stated  in 
the  pleading." 

The  demurrer  only  admits  the  traversable  facts,  not  inferences 
or  conclusions  of  law.  Moss  v.  Eiddle,  5  Cranch,  351;  Hall  v. 
Bartlett,  9  Barb.  301;  Ford  v.  Peering,  1  Ves.  Jr.  (Sumner's 
ed.)  77,  and  cases  cited  in  note;  City  of  Buffalo  v.  Holloway,  7 
N.  Y.  493.  The  demurrer  we  think  was  well  taken,  and  the 
order  of  the  court  below  overruling  it  is  reversed. 

Judgment  reversed. 


AMERICAN  TRADING  &  STORAGE  CO.  v.  GOTTSTEIN. 
123  Iowa  267.     [1904.] 

Appeal  by  plaintiff  from  judgment  on  demurrer  to  its  com- 
I)laint. 

McClain,  J.  The  objection  raised  by  the  demurrer  to  the 
plaintiff's  recovery  on  the  Illinois  judgment  set  out  in  the  peti- 


790  DEMURRERS.  [ChaP.  VI. 

tion  is  that  the  Illinois  court  has  no  jurisdiction  of  the  defendant, 
and,  therefore,  the  judgment  rendered  is  void.  The  claim  of 
want  of  jurisdiction  is  predicated  upon  two  grounds:  First, 
that  in  its  bill  of  complaint  in  the  Illinois  court  the  complainant 
(plaintiff  in  this  action)  did  not  ask  relief  by  way  of  a  personal 
judgment  against  the  defendant;  and,  second,  that  after  ren- 
dering a  final  decree  in  the  action  which  did  not  include  any 
personal  judgment  against  the  defendant,  the  Illinois  court  pro- 
ceeded without  jurisdiction  to  render  a  subsequent  decree,  which 
is  the  one  relied  on  by  plaintiff,  in  which  it  is  adjudged  that  the 
complainant  recover  of  the  defendant  the  sum  of  $532.93,  for 
which  execution  shall  issue  as  upon  a  judgment  at  common  law. 
It  is  sufficiently  shown  by  the  allegations  of  the  complaint  that 
the  defendant  appeared  in  the  Illinois  court  so  as  to  confer 
upon  that  court  jurisdiction  to  render  a  personal  judgment,  pro- 
vided the  court  had  the  power  in  such  proceeding  and  at  the 
time  the  final  decree  was  rendered  to  enter  a  personal  judgment. 
In  the  complaint  filed  in  the  Illinois  court  relief  is  asked  by  way 
of  foreclosure  of  a  lien  against  certain  personal  property  alleged 
to  belong  to  the  defendant  for  certain  storage  and  handling 
charges  in  connection  with  such  property  shipped  by  defendant 
to  complainant  at  Chicago  for  sale,  with  an  additional  prayer  for 
*'such  other  and  further  relief  in  the  premises  as  equity  may 
require  and  as  to  the  court  may  seem  meet."  The  objection  that 
this  complaint  did  not  give  the  Illinois  court  jurisdiction  to  enter 
a  personal  judgment  is  not  well  taken,  for  several  reasons.  In 
the  first  place,  the  decree  of  the  Illinois  court  having  jurisdiction 
of  the  parties  is  conclusive  as  against  collateral  attack  on  the 
question  of  law  as  to  whether  the  complaint  was  such  as  to  war- 
rant a  personal  judgment.  There  are,  no  doubt,  expressions  in 
text-books  and  opinions  to  the  effect  that  a  judgment  for  relief, 
not  asked  for  in  the  complaint,  is  void  for  want  of  jurisdiction, 
but,  as  far  as  any  authorities  to  this  effect  are  cited  for  appellee, 
they  relate  to  cases  where  the  question  was  raised  by  way  of 
appeal  or  other  method  of  direct  attack,  or  where  the  judgment 
was  by  default,  and  therefore  without  jurisdiction,  except  in  so 
far  as  the  defendant  was  advised  by  the  notice  of  summons  and 
the  complaint  or  other  pleading  filed  that  judgment  might  be 
rendered  against  him.  It  is  not  necessary  now  to  discuss  the 
authorities  on  this  subject,  as  our  conclusion  is  sufficiently  sup- 
ported by  other  considerations  hereinafter  stated. 


Sec.  1.]       TRADING  &  STORAGE  CO.  V.  GOTTSTEIN.  791 

It  seems  to  be  well  settled  under  the  authorities  that  a  prayer 
for  general  relief  in  a  complaint  in  equity  will  sustain  a  per- 
sonal judgment.  Her  v.  Griswold,  83  Iowa,  442,  49  N.  W.  1023 ; 
Thomas  v.  Farley  Mfg.  Co.,  76  Iowa,  735,  39  N.  W.  874.  Thus, 
in  Cushman  v.  Bonfield,  139  111.  219,  28  N.  E.  937,  it  is  held  that 
a  bill  for  the  specific  enforcement  of  a  contract,  which  also 
contains  a  prayer  for  general  relief,  will  support  a  money  de- 
cree, although  the  specific  relief  asked  cannot  be  given.  And  to 
the  same  effect  are  Gibbs  v.  Davies,  168  111.  205,  48  N.  E.  120, 
and  Penn  v.  Folger,  182  111.  76,  55  N.  E.  192.  We  think  there 
can  be  no  doubt  of  the  power  of  the  Illinois  court,  as  a  general 
principle  of  equity  practice,  to  enter,  as  it  did,  personal  judg- 
ment for  the  balance  of  the  indebtedness  of  defendant  to  the 
complainant  after  the  application  in  discharge  of  complainant's 
lien  of  the  amount  realized  by  judicial  sale  of  the  property  sub- 
ject to  the  lien.  But,  if  there  could  be  any  doubt  of  the  suffi- 
ciency of  the  complaint  to  sustain  the  decree  for  a  money  judg- 
ment under  the  general  rules  of  procedure  recognized  in  this 
state,  it  is  removed,  so  far  as  this  case  is  concerned,  by  plaintiff's 
allegation  in  an  amendment  to  his  petition  that  by  the  general 
usage  and  practice  of  courts  of  equity  in  the  state  of  Illinois  and 
the  decisions  of  the  Supreme  Court  of  said  state  a  court  of 
chancery  of  that  state  has  jurisdiction  under  such  prayer  for 
general  relief  to  enter  a  personal  judgment  when  the  same  is 
consistent  with  the  allegations  of  fact  contained  in  the  bill,  and 
that  the  decree  of  the  Illinois  court  was  rendered  in  accordance 
with  such  usage  and  practice.  This  allegation  of  fact  as  to  the 
law  of  Illinois  is  confessed  by  the  demurrer,  and  we  are  bound, 
therefore,  to  assume,  for  the  purpose  of  this  case,  as  it  is  now 
before  us,  that  the  personal  judgment  was  sufficiently  warranted 
by  the  allegations  of  the  bill  of  complaint.     *     *     * 

Judgment  reversed. 


FINNEY  V.  GUY. 

189  U.  S.  335.     [1903.] 

This  action  was  commenced  in  the  proper  court  of  the  state  of 
Wisconsin  to  enforce  the  shareholders'  liability  under  a  Min- 
nesota statute,  in  a  corporation  of  Minnesota  and  doing  business 
in  that  state.    The  defendant  demurred  to  the  complaint  on  the 


792 


DEMURRERS.  [ChaP.  VI. 


ground,  among  others,  that  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  The  demurrer  was  overruled  by  the 
trial  court  and  judgment  given  for  the  plaintiff,  which  was  re- 
versed by  the  supreme  court  of  the  state,  and  the  case  has  been 
brought  here  by  plaintiff  to  review  the  judgment  of  reversal. 
*     #     *     * 

Mr.  Justice  Peckham  delivered  the  opinion  of  the  court: 

The  demurrer  raises  the  question  whether  the  complaint  states 
facts  sufficient  to  constitute  a  cause  of  action.  The  plaintiffs 
contend  that  their  cause  of  action  is  based  upon  the  decisions 
and  judgments  of  the  courts  of  the  state  of  Minnesota,  and  upon 
the  statutes  of  that  state,  and  that  the  Wisconsin  supreme  court, 
in  sustaining  the  demurrer,  has  thereby  failed  to  give  that  full 
faith  and  credit  to  the  laws  and  judgments  of  the  state  of  ]\Iin- 
nesota  and  its  courts  which  they  receive  in  that  state  and  which 
they  are  entitled  to  under  the  Constitution  and  laws  of  the 
United  States,  and  that  by  reason  thereof  a  Federal  right  has 
been  denied  them. 

They  urge  that  under  the  judgment  of  the  American  Sav.  & 
L.  Asso.  V.  Farmers'  &  M.  State  Bank,  w^hich  was  recovered  in 
the  IMinnesota  court,  and  is  referred  to  in  the  foregoing  state- 
ment of  facts,  the  defendant  is  concluded  as  to  her  defense,  to 
the  same  extent  she  would  have  been  had  she  appeared  and  con- 
tested her  liability  in  the  Minnesota  courts,  and  that,  as  a  conse- 
quence, the  Wisconsin  courts  are  bound  to  give  the  same  effect 
to  that  judgment  in  their  courts  that  it  has  in  the  courts  of 
Minnesota ;  that  if  such  effect  had  been  awarded  that  judgment, 
then  this  action  could  have  been  maintained ;  and  the  Wisconsin 
court,  in  sustaining  the  demurrer,  denied  such  effect  to  the 
judgment,  which  was  a  violation  of  a  right  founded  upon  the 
Federal  Constitution.     *     *     * 

*  *  *After  quite  a  full  examination  of  the  IMinnesota  deci- 
sions on  the  question,  we  have  just  decided  in  Hale  v.  Allison, 
188  U.  S.  56,  ante,  380,  23  Sup.  Ct.  Rep.  244,  that  a  receiver 
appointed  in  Minnesota,  under  these  same  statutes,  could  not 
maintain  an  action  outside  of  that  state  to  enforce  the  liability 
of  a  stockholder;  and  it  was  said  that  the  courts  of  Minnesota 
had  held  the  same  thing  for  many  years.  An  examination  of 
the  decisions  of  the  Minnesota  courts  shows  that  they  had  held 
that  the  remedy  provided  by  the  statutes  of  the  state  for  the 
enforcement  of  stockholders'  liability  was  a  suit  in  equity  in 


Sec.  1.]  FINNEY  V.  GUY.  793 

that  state  by  a  creditor  in  his  own  behalf  and  that  c.f  all  other 
creditors,  against  all  the  stockholders  of  the  corporation,  or  so 
many  of  them  as  could  be  served  with  process,  and  that  it  was 
exclusive,  and  no  other  remedy  could  be  availed  of  even  within 
the  jurisdiction  of  the  courts  of  Minnesota.  That  being  the  law 
of  Minnesota,  it  would,  of  course,  prevent  an  action  outside  the 
state  by  a  receiver,  as  well  as  by  any  other  plaintiff,  to  enforce 
the  stockholders'  liability.  Hence,  in  the  Hale-Allison  Case, 
we  held  the  receiver  could  not  maintain  such  an  action  in  a 
foreign  jurisdiction  and  in  a  Federal  court.  *  *  *  This 
would  call  for  an  affirmance  of  the  judgment  but  for  the  claim 
now  urged  by  counsel  for  plaintiffs,  that  the  case  of  Allen  v. 
Wash  has  been  overruled  by  a  subsequent  case  in  Minnesota, 
and  that  the  law  is  correctly  set  forth  in  the  complaint.  He  calls 
attention  to  the  fact  that  this  ease  has  not  gone  to  trial  upon  an 
issue  of  any  question  of  fact,  but  the  questions  to  be  determined 
have  arisen  on  demurrer  to  the  complaint;  that  the  complaint 
avers  as  a  fact  that  by  the  law  of  Minnesota,  such  an  action  as 
this  can  be  maintained  in  the  courts  of  a  foreign  jurisdiction 
after  a  judgment  has  been  recovered  in  an  action  in  the  state 
court,  such  as  is  referred  to  in  the  complaint,  and  that  the  de- 
fendant, by  demurring  admits  that  the  law  is  as  stated  in  the 
complaint,  and  therefore,  the  court  is  bound  to  give  effect  to  the 
law  of  Minnesota  such  as  is  set  forth  in  that  pleading.  This  is 
too  broad  a  claim  to  be  maintained. 

If  the  case  had  been  on  trial  upon  the  issues  of  fact,  among 
them  being  one  as  to  what  the  law  of  Minnesota  was,  and  the 
statutes  as  well  as  the  decisions  above  mentioned  had  been  proved, 
and  a  witness  learned  in  the  law  of  Minnesota  had  testified  what 
such  law  was,  as  deduced  by  him  from  those  statutes  and  deci- 
sions, his  testimony  would  not,  even  though  uncontradicted,  con- 
clude the  court  upon  that  issue.  Although  the  law  of  a  foreign 
jurisdiction  may  be  proved  as  a  fact,  yet  the  evidence  of  a  wit- 
ness stating  what  the  law  of  the  foreign  jurisdiction  is,  founded 
upon  the  terms  of  a  statute,  and  the  decisions  of  the  courts 
thereon  as  to  its  meaning  and  effect,  is  really  a  matter  of  opinion, 
although  proved  as  a  fact,  and  courts  are  not  concluded  thereby 
from  themselves  consulting  and  construing  the  statutes  and 
decisions  which  have  been  themselves  proved,  or  from  deducing 
a  result  from  their  own  examination  of  them  that  may  differ 


794  DEMURRERS.  [ChaP.  VI. 

from  that  of  a  witness  upon  the  same  matter.  In  other  words, 
statutes  and  decisions  having  been  proved  or  otherwise  properly 
brought  to  the  attention  of  the  court,  it  may  itself  deduce  from 
them  an  opinion  as  to  what  the  law  of  the  foreign  jurisdiction 
is,  without  being  conclusively  bound  by  the  testimony  of  a  wit- 
ness who  gives  his  opinion  as  to  the  law,  which  he  deduces  from 
those  very  statutes  and  decisions. 

It  was  stated  by  Mr.  Justice  Brewer,  speaking  for  the  court 
in  Eastern  Bldg.  &  L.  Asso.  v.  Williamson,  189  U.  S.  122,  ante, 
735,  2  Sup.  Ct.  Rep.  527,  a  case  just  decided  and  where  the 
same  question  in  substance  was  before  us,  as  follows:  "But  it 
is  contended  that  the  construction  of  the  New  York  statutes  as 
applicable  to  this  contract  was  shown  by  the  decisions  of  the 
courts  of  that  state  and  the  opinion  of  one  learned  in  its  laws; 
that  there  was  no  contradictory  testimony,  and,  therefore,  it  was 
the  duty  of  the  South  Carolina  courts  to  find  as  a  fact  that  such 
was  the  true  construction." 

This  was  the  contention  of  the  defendant,  and  then  after  re- 
ferring to  the  construction  of  the  contract  as  contended  for  by 
the  plaintiff,  the  justice  continued: 

* '  It  is  said  that  the  promise  made  in  the  certificate  is  expressly 
based  upon  'full  compliance  with  the  terms,  conditions,  and  by- 
laws printed  on  the  front  and  back  of  this  certificate';  that  one 
of  the  conditions  expressed  on  the  face  of  the  certificate  is :  '  The 
shareholder  agrees  to  pay,  or  cause  to  be  paid,  a  monthly  in- 
stallment of  $.75  on  each  share  named  in  this  contract,  the  same 
to  be  paid  on  or  before  the  last  Saturday  of  each  month  until 
such  share  matures  or  is  withdrawn';  that  it  contained  this  fur- 
ther stipulation:  'Payable  in  the  manner  and  upon  the  condi- 
tions set  forth  in  said  terms,  conditions,  and  by-laws  hereto  at- 
tached,' and  that  these  matters  thus  referred  to  had  the  effect 
of  changing  the "  absolute  promise  to  a  conditional  one.  All 
these  were  received  in  evidence,  and  when  so  received,  it  became 
a  matter  of  judicial  construction  to  determine  whether  they  had 
such  effect,  and  that  was  a  question  which,  nothing  else  being 
shown,  was  for  the  consideration  of  the  courts  in  which  the  liti- 
gation was  pending.  In  like  manner,  after  the  decisions  of  the 
courts  of  New  York  were  received  in  evidence,  their  meaning 
and  scope  became  matters  for  the  same  consideration.  While 
statutes  and  decisions  of  other  states  are  facts  to  be  proved,  yet 


Sec.  1.]  FINNEY   V.   GUY.  795 

when  proved,  their  construction  and  meaning  are  for  the  con- 
sideration and  judgment  of  the  courts  in  which  they  have  been 
proved.    Nor  is  the  rule  changed  by  the  testimony  given  in  the 
deposition  of  defendant's  counsel;  for,  as  he  states,  his  opinion 
is  based  on  the  stautes,  the  articles  of  incorporation,  and  the 
decisions  admitted  in  evidence,  together  with  similar  decisions 
of  other  states  under  like  statutes,  articles  of  incorporation,  and 
by-laws.    No  witness  can  conclude  a  court  by  his  opinion  of  the 
construction  and  meaning  of  statutes  and  decisions  already  in 
evidence.     Laing  v.  Rigney,  160  U.  S.  531,  40  L.  ed.  525,  16  Sup. 
Ct.  Rep.  336.     The  duty  of  the  court  to. construe  and  decide 
remains  the  same."    This  right  and  duty  of  the  courts  to  them- 
selves construe  the  statutes  and  decisions  are  not  altered  because 
the  lav/  of  the  foreign  state  and  the  various  decisions  of  its  courts 
are  alleged  to  be  as  set  forth  in  a  pleading  which  is  demurred 
to,  instead  of  being  proved,  on  a  trial.    In  this  case  the  statutes 
together  with  references  to  the  decisions  of  the  state  courts,  are 
given  in  the  complaint,  and  the  pleader,  by  making  an  aver- 
ment in  the  form  of  a  fact,  assumes  to  give  a  meaning  to  them 
such  as  he  thinks  to  be  correct ;  but  the  duty  still  remains  with 
the  courts  to  themselves  determine  from  those  statutes,  and  de- 
cisions what  is  in  truth  the  law  of  the  foreign  jurisdiction.   The 
courts  are  not  concluded  by  an  averment  of  what  is  the  law  in  a 
foreign  jurisdiction,  contained  in  a  pleading  which  is  demurred 
to,  any  more  than  they  would  be  by  the  testimony  of  a  witness 
to  the  same  effect  upon  a  trial;  certainly  not  when  the  statute 
upon  wiiich  the  case  rests  is  set  forth  and  the  decisions  under  it 
are  also  referred  to  as  evidence  of  the  law.    The  demurrer  does 
not  admit  as  a  fact  that  the  construction  (in  form  of  an  aver- 
ment of  fact)  which  the  pleader  may  choose  to  put  upon  those 
statutes  or  decisions  is  the  right  conclusion  to  be  drawn  from 
them.    Notwithstanding  the  averments  in  the  complaint,  we  are 
brought  to  an  examination  of  the  statutes  and  decisions  referred 
to,  in  order  to  ourselves  determine  what  the  law  of  Minnesota 


* 


Whether,  aside  from  the  Federal  considerations  just  discussed, 
the  Wisconsin  court  should  have  permitted  this  action  to  be 
maintained,  because  of  the  principle  of  comity  between  the 
states,  is  a  question  exclusively  for  the  courts  of  that  state  to 
decide.  The  right  to  maintain  it  under  the  facts  of  this  case 
is  not  founded  upon  any  provision  of  a  Federal  nature,  and  we 


796  DEMURRERS.  [ChAP.  VI. 

cannot  supervise  the  action  of  the  Wisconsin  court  in  this  par- 
ticular. 

The  judgment  of  the  Supreme  Court  of  Wisconsin  must  be 
affirmed. 


GILLETTE  v.  PEABODY. 

19  Col.  App.  356.     [1904.] 

Thomson,  P.  J.  This  action  was  brought  by  the  appellant,  as 
a  citizen  and  tax  payer  of  Colorado,  to  restrain  the  appellees,  a 
commission  created  by  statute,  from  awarding  a  contract  to  the 
Mills  Publishing  Company  for  the  publication  and  sale  of  the 
reports  of  the  opinions  of  the  Court  of  Appeals,  and  to  compel 
them  to  award  the  contract  to  the  Banks  Law  Publishing  Com- 
pany. A  demurrer  was  interposed  to  the  complaint,  on  the 
ground,  among  others,  that  the  complaint  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  The  demurrer  was 
sustained,  and,  the  plaintiff  declining  to  amend,  judgment  was 
entered  for  the  defendants.     The  plaintiff  appeals.     *     *     * 

Finally  it  is  said  that  the  allegation  that  the  contract  was 
awarded  to  the  Mills  Company  because  of  its  proposition  to 
do  the  work  within  the  state  and  to  employ  union  labor  was 
admitted  by  the  demurrer,  and  that  the  awarding  of  the  con- 
tract for  that  reason  was  in  itself  an  act  of  discrimination.  It 
is  nowhere  averred  that  in  making  the  award  the  commission 
did  not  act  in  good  faith.  Nothing  in  the  nature  of  fraud  is 
charged  against  them.  In  Johnson  v.  Sanitary  District,  supra, 
it  is  said  that,  in  the  absence  of  fraud,  it  is  beyond  the  province 
of  the  court  to  control  a  discretion  vested  in  public  officers.  We 
have  no  authority  to  inquire  into  the  grounds  on  which  this 
award  was  made.  Those  grounds  may  have  been  insufficient. 
The  power  of  the  commission  to  decide,  involved  the  power  to 
decide  erroneously,  but  their  decision,  whether  correct  or  not, 
cannot  be  reviewed  in  this  proceeding.  In  Douglas  v.  Common- 
wealth, supra,  the  court  said:  "If  the  authorities  act  in  good 
faith,  although  erroneously  or  indiscreetly,  mandamus  will  not 
lie  to  compel  them  to  modify  or  change  their  decision. ' ' 

A  demurrer  admits  everything  that  is  well  pleaded,  but  a  mat- 
ter which  the  courts  are  debarred  from  considering  is  not  well 


Sec.  1.]  GILLETTE  V.  PEABODY.  797 

pleaded.    The  complaint  is  no  better  with  the  allegation  than  it 
would  have  been  without  it. 

We  think  the  demurrer  was  properly  sustained  and  the  judg- 
ment will  be  affirmed. 


LANGE  V.  BENEDICT. 

73  N.  Y.  12.     [1878.] 

FoLGER,  J.  The  plaintiff  has  brought  an  action  against  the 
defendant  for  false  imprisonment,  and  detention  in  prison.  He 
alleges  that  it  was  wrongful  and  willful,  without  just  cause  or 
provocation.  He  does  not  allege  that  it  was  malicious  or  cor- 
rupt. The  complaint  in  the  action  sets  out  the  facts  in  extenso 
upon  which  the  plaintiff  relies.  To  this  the  defendant  has  de- 
murred, stating  three  causes  of  demurrer;  but  the  one  cause 
relied  upon,  is  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action. 

It  is  well,  therefore,  to  state  with  some  particularity  the  facts 
which  are  alleged,  or  are  conceded.  In  October,  1873,  the  de- 
fendant was  judge  of  the  District  Court  for  the  United  States, 
of  the  eastern  district  of  New  York.  As  such,  by  virtue  of  an 
ac!t  of  Congress,  he  presided  at  and  held  the  Circuit  Court  of 
the  United  States  for  the  southern  district  of  New  York,  for 
the  October  term  of  that  year.  The  plaintiff  was  at  that  term 
arraigned  upon  an  indictment  of  twelve  counts,  the  general 
purport  of  which  was  that  he  had  stolen,  embezzled,  or  appro- 
priated to  his  own  use,  certain  mail-bags,  the  property  of  the 
United  States,  of  the  value  of  twenty-five  dollars;  he  was  tried 
upon  the  indictment ;  the  verdict  of  the  jury  was,  generally,  that 
the  plaintiff  was  guilty,  and  that  the  value  of  the  mail-bags  was 
less  than  twenty-five  dollars.  He  was  indicted  under  an  act  of 
Congress,  which  declared  the  offence  and  affixed  the  punishment. 
By  that  act,  if  the  value  of  the  mail-bags  taken  was  found  to  be 
less  than  twenty-five  dollars,  the  punishment  for  the  offense  was 
a  fine  of  $200  or  imprisonment  for  one  year.  The  defendant 
sitting  as  such  judge,  and  holding  that  court  at  that  term,  passed 
judgment  upon  the  plaintiff  and  sentenced  him  to  pay  a  fine  of 
$200,  and  to  be  imprisoned  for  one  year.  It  is  manifest  that 
the  punishment  thus  imposed  was  more  than  that  affixed  to  the 


798  DEMURRERS.  [ChaP.  VI. 

offense  by  the  act  of  Congress.  The  plaintiff  paid  to  the  clerk 
of  the  United  States  Circuit  Court,  intending  it  in  full  payment 
of  the  fine  so  imposed,  the  sum  of  $200.  This  was  done  on  the 
4th  day  of  November,  1873,  and  during  the  same  term  of  the 
court;  and  the  clerk  made  certificate  that  the  sum  was  then  on 
deposit  in  the  registry  of  that  court.  The  clerk  paid  the  money 
into  the  office  of  the  assistant  treasurer  of  the  United  States, 
in  New  York  city,  in  that  circuit,  to  the  credit  of  the  treasurer 
of  the  United  States,  as  the  fine  thus  imposed.  There  is  no  direct 
allegation  in  the  complaint  that  the  plaintiff  was  imprisoned 
under  that  sentence.  There  is  an  allegation,  that  during  the 
same  term  of  that  court,  a  writ  of  habeas  corpus  was  granted 
and  returned  into  that  court,  in  which  the  imprisonment  of  the 
plaintiff  was  made  to  appear.  It  may  be  taken  as  conceded, 
however,  that  the  plaintiff  was  actually  in  prison  for  the  space 
of  five  days  afler  the  pronouncing  of  that  sentence,  and  before 
further  proceedings  were  had.  At  the  same  term  of  that  court, 
the  defendant  sitting  and  holding  that  court,  and  as  the  judge 
thereof,  on  the  return  of  that  writ  vacated  and  set  aside  the 
sentence  above  set  forth,  and  at  the  same  time  and  as  part  of 
the  same  judicial  act  and  order,  passed  judgment  anew  upon  the 
plaintiff,  and  resentenced  him  to  be  imprisoned  for  the  term  of 
one  year.  Under  this  action  of  the  defendant,  the  plaintiff  was 
imprisoned;  which  is  the  alleged  wrongful  imprisonment  and 
detention  of  him  by  the  defendant. 

Judicial  proceedings  were  afterwards  had  in  behalf  of  the 
plaintiff,  the  end  of  which  was  that  the  Supreme  Court  of  the 
United  States  adjudged  the  resentence,  above  stated  to  have 
been  pronounced,  without  authority,  and  discharged  the  plaintiff 
from  his  imprisonment.  It  does  not  appear  that  the  defendant 
was  a  party  to  the  proceedings  in  the  Supreme  Court,  or  was 
heard  or  represented  there. 

On  this  state  of  facts,  the  plaintiff  insists  that  the  defendant 
is  liable  to  him  in  damages.  The  defendant  claims  that  the 
facts  show  that  all  which  he  did,  he  did  as  a  United  States  judge, 
and  that  the  judicial  character  in  which  he  acted  protects  him 
from  personal  responsibility. 

In  our  judgment,  the  question  between  the  parties  is  brought 
to  what,  in  words  at  least,  is  a  very  narrow  issue:  Did  the  de- 
fendant impose  the  second  sentence  as  a  judge;  or  although  he 
was  at  the  moment  of  right  upon  the  bench,  and  authorized  and 


Sec.  1.]  LANGE   V.    BENEDICT.  799 

empowered  to  exercise  the  functions  of  a  judge,  was  the  act  of 
resentencing  the  plaintiff  so  entirely  without  jurisdiction,  or  so 
beyond  or  in  excess  of  the  jurisdiction  which  he  then  had  as  a 
judge,  as  that  it  was  an  arbitrary  and  unlawful  act  of  a  private 
person?  A  narrow  issue,  but  not  easily  determined  to  the  satis- 
faction of  a  cautious  inquirer. 

The  plaintiff  makes  a  preliminary  point,  that  inasmuch  as  the 
complaint  avers  that  the  defendant  wrongfully  and  willfully, 
and  without  jurisdiction,  falsely  imprisoned  the  plaintiff,  that, 
therefore,  as  a  technical  rule  of  pleading,  the  demurrer  having 
admitted  the  allegations  of  the  complaint,  there  must  be  judg- 
ment for  the  plaintiff.  But  the  complaint  does  not  rest  satisfied 
with  that  general  allegation.  It  rests  the  general  allegation 
upon  the  special  circumstances  afterwards  set  forth  in  it,  and 
which  are  made  up  of  all  or  nearly  all  the  facts  which  we  have 
above  recited.  So  we  have  to  consider  them  as  well  as  the 
general  allegation,  and  to  treat  the  general  allegation  as  no 
broader  or  more  effectual  than  the  special  circumstances  upon 
which  the  complaint  rests  it. 

There  are  not  many  topics  in  the  law  which  have  received 
more  discussion  and  consideration  than  that  of  the  liability  of  a 
person  holding  a  judicial,  or  quasi  judicial  office,  to  an  action  at 
law,  for  an  act  done  by  him  while,  at  the  same  time,  exercising 
his  office.  The  principles  which  should  govern  such  actions,  are, 
therefore,  well-settled.  The  difficulty  in  satisfactorily  disposing 
of  a  particular  case  is,  not  in  finding  the  rule  of  law  upon  which 
it  is  to  be  decided,  but  in  determining  on  which  side  of  that  rule 
the  facts  of  the  case  do  lie.     *     *     * 

For  these  reasons,  we  are  of  the  opinion  that  the  defendant  is 
protected  by  his  judicial  character  from  the  action  brought  by 
the  plaintiff.  *  *  *  The  judgment  of  the  General  Term 
(sustaining  the  demurrer)  should  be  affirmed. 

Judgment  affirmed. 


COOKE  V.  TALLMAN. 

40  Iowa,  133.     [187 -i.] 

The  same  facts  are  involved  in  all  of  these  causes,  and  they 
are  submitted  upon  one  abstract.  The  petitions  allege  that  the 
defendant   prosecuted   certain  suits,  wherein  the  plaintiffs   in 


800  DEMURRERS.  [ChAP.  VI. 

these  actions  were  defendants,  for  the  purpose  of  setting  aside 
plaintiff's  titles,  based  npon  tax  sales  and  deeds,  to  certain 
lands  which  were  claimed  by  defendant;  that  plaintiffs  were 
non-residents  of  the  State,  and  service  was  had  upon  them  by 
publication;  that  such  service  was  illegal,  and  not  sufficient  to 
give  the  court  jurisdiction;  and  that  judgments  by  default  in 
the  actions  were  rendered  against  the  plaintiffs.  The  relief 
asked  is  that  the  judgments  be  set  aside,  and  the  proper  plaintiffs 
be  allowed  to  appear  and  defend  in  each  suit.  A  demurrer  to 
each  petition  was  sustained,  and  plaintiffs  in  each  case  appealed. 
The  other  facts  of  the  case  necessary  to  an  understanding  of  fhe 
point  ruled,  appear  in  the  opinion. 

Beck,  j.  *  *  *  The  law  in  force  at  the  time  provides 
that  "the  publication  must  be  made  by  publishing  the  notice 
required  *  *  *  in  some  newspaper  published  at  least  week- 
ly, and  printed  in  the  county  where  the  petition  is  filed,  and  if 
there  be  none  printed  in  such  county,  then  in  such  paper  printed 
at  the  next  nearest  county  of  this  state,  which  paper  shall  in 
either  case  be  determined  by  plaintiff" 's  attorney."  Acts  13th 
General  Assembly,  Chapter  142.    Code  §  2619. 

It  may  be  admitted  that  the  newspaper  in  which  the  publica- 
tion may  be  made,  must  be  printed  in  the  county  where  the 
suit  is  brought,  and  if  there  be  none  such  then  the  notice  must 
appear  in  a  newspaper  printed  in  the  next  nearest  county.  The 
petition  alleges  that  the  newspaper  in  which  the  publication  was 
made  was  printed  in  Webster  county,  and  that  no  newspaper  was 
printed  in  Pocahontas  county.  It  also  shows  that  the  notice 
was  published  in  the  newspaper  determined  by  plaintiff's  attor- 
ney. Now  the  question  to  be  decided  is  this:  Is  Webster  the 
next  nearest  county  as  contemplated  by  the  statute  ?  The  court 
will  take  judicial  notice  of  the  boundaries  of  counties,  and  their 
relative  location.  Webster  county  lies  adjacent  to  Pocahontas. 
Four  other  counties  also  have  common  boundaries  with  it,  and 
it  had  corners  in  common  with  two  others.  Of  these,  which,  in 
the  language  of  the  statute,  is  "the  next  nearest  county?"  The 
statute  makes  no  provision  as  to  the  town  in  which  the  paper 
is  published,  further  than  it  shall  be  "at  the  next  nearest 
county."  Five  counties  lie  equally  ''near"  Pocahontas,  that 
is,  they  have  boundary  lines  in  common  with  it.  Suppose  in 
each  of  these  counties  newspapers  were  published,  how  should 
the  question  have  been  determined  as  to  the  one  in  which  the 


Sec.  1.]  COOKE  v.  tallman.  801 

publication  should  have  been  made?  The  statute  provides  it 
shall  be  determined  by  plaintiff's  attorney.  It  is  evident  that 
of  these  five  counties,  each  being  adjacent  to  Pocahontas  county, 
any  one  may  be  considered  the  next  nearest,  if  so  determined  in 
the  manner  and  by  the  person  pointed  out  in  the  statute.  The 
publication,  therefore,  of  the  notice  in  a  newspaper  printed  in 
Webster  county,  upon  the  determination  of  plaintiff's  attorney, 
was  a  strict  compliance  with  the  law. 

II.  But  the  petition  alleges  that  Humboldt  is  "the  next 
nearest  count}'."  This  contradicts  the  record  pleaded  by  plain- 
tiffs, which  shows  that  Webster  county  was  so  determined  in  the 
manner  pointed  out  by  law  and  other  facts,  the  location  and 
boundaries  of  the  different  counties,  of  which  the  courts  will 
take  judicial  notice.  A  fact  which  is  judicially  known  to  the 
court  is  to  be  regarded  as  a  matter  of  law,  and  therefore  cannot 
be  pleaded.  A  contradiction  or  denial  of  such  a  fact  cannot  be 
well  pleaded,  and  is  not  admitted  by  a  demurrer.  Rev.,  §  2917. 
Code,  §  2712.  The  demurrer  therefore  did  not  admit  the  allega- 
tion of  the  petition  just  stated. 

Other  objections  to  the  ruling  of  the  court  upon  the  demurrer 
are  not  presented  in  the  argument  of  plaintiff's  counsel.  We 
are  required  to  regard  them  as  waived. 

The  judgment  in  each  cause  is 

AiJirmed. 


scoFiELD  V.  Mcdowell. 

47  la.,  129.      [1877.] 

This  is  an  action  to  quiet  the  title  and  recover  the  possession 
of  certain  lands,  which  the  plaintiffs  claim  under  tax  deeds 
executed  November  6th,  and  recorded  November  9th,  1872.  The 
defendant  by  answer  and  cross-bill  alleged  that  the  fee  simple 
title  is  in  her,  and  that  the  title  of  the  plaintiffs  is  void,  for  the 
following  reasons: 

1.  The  defendant  after  the  expiration  of  three  years  from 
the  date  of  the  sale,  but  before  the  execution  of  the  deed,  ten- 
dered the  full  amount  necessary  to  redeem  from  the  sale  to  the 
county  auditor,  and  to  the  holders  of  the  certificates,  which  they 
refused  to  accept. 

51 


802  DEMURRERS.  [ChaP.  VI. 

2.  The  lands  were  sold  at  tax  sale  in  October,  18G9,  without 
being  advertised  for  sale. 

The  plaintiff  demurred  to  the  answer  and  cross-bill,  upon  the 
ground  that  they  presented  no  defense  to  the  plaintiff's  action, 
and  did  not  entitle  the  defendant  to  relief.  The  demurrer  was 
sustained.  The  defendant  refusing  to  further  plead,  a  decree 
was  entered  for  plaintiff's.  At  the  April  term,  1876,  an  opinion 
was  filed  reversing  the  decision  of  the  court  below.  Upon  plain- 
tiff's petition  a  rehearing  was  granted,  and  the  cause  is  again 
submitted  for  determination. 

Day,  Ch.  J.  I.  That  the  right  of  redemption  must  be  exer- 
cised within  three  years  from  the  date  of  sale  was  determined 
by  this  court  in  Pearson  v.  Robinson,  44  Iowa,  413. 

II.  The  plaintiffs  claim  title  to  the  lands  under  two  tax 
deeds  executed  November  6,  1872,  and  duly  recorded.  Section 
784  of  the  Revision  provides  that  the  deed,  when  substantially 
executed  as  required  and  recorded  in  the  proper  record,  shall 
be  conclusive  evidence  "that  the  property  was  advertised  for 
sale  in  the  manner,  and  for  the  length  of  time,  required  by  law." 
This  provision  was  held  to  be  constitutional  in  Allen  v.  Arm- 
strong, 16  Iowa,  508  (514) ;  See,  also,  Madson  v.  Sexton,  37 
Iowa,  562. 

The  answer  and  cross-petition  admit  the  execution  of  the  tax 
deeds  under  which  the  plaintiffs  claim  the  land.  They  admit, 
also,  by  implication,  that  the  deeds,  in  form,  are  in  substantial 
compliance  with  the  law^  But  they  allege  that  the  lands  were 
sold  without  any  advertisement,  and  that  the  deeds  are,  in  con- 
sequence thereof,  void.  The  plaintiffs,  instead  of  taking  issue 
upon  this  allegation  of  the  answer  and  cross-petition,  demurred 
thereto.  It  is  claimed  the  effect  of  this  demurrer  is  to  admit 
the  truth  of  the  allegation;  that,  the  truth  of  the  allegation 
admitted,  the  answer  sets  up  a  good  defense,  and  the  cross-peti- 
tion a  good  ground  for  affirmative  relief;  and  that  the  demurrer 
should  have  been  overruled. 

It  is  a  familiar  principle  of  pleading  that  a  demurrer  admits 
only  facts  which  are  well  pleaded.  The  answer  and  cross-peti- 
tion, as  we  have  seen,  admit  the  execution  of  the  tax  deeds  in 
question.  The  law  attaches  to  these  deeds  certain  properties  or 
qualities.  One  of  these  is  that  the  deeds  are  conclusive  evidence 
that  the  lands  were  duly  advertised  for  sale.  Whenever  the  fact 
that  a  tax  deed  has  been  duly  executed  is  established  by  the  pro- 


Sec.  l.J  scoFiELD  v.   m 'do well.  803 

duction  of  the  deed  in  evidence,  or  by  the  admissions  in  the 
pleadings,  the  law  raises  the  conclusive  presumption  that  the 
lands  described  in  the  deed  were  duly  advertised  for  sale.  Is 
it,  then,  competent  for  a  pleader  to  admit  the  execution  of  such 
deeds,  and  at  the  same  time  deny  the  legal  inference  which  the 
law  conclusively  raises?  It  seems  to  us  clear  that  it  is  not  com- 
petent so  to  plead.  If,  however,  such  a  pleading  is  interposed, 
does  a  demurrer  thereto  admit  the  truth  of  the  allegation  im- 
properly made?  Suppose  a  party  sued  upon  a  promissory  note 
should  admit  the  due  execution  of  the  note,  that  it  was  given 
upon  good  consideration,  that  it  is  the  property  of  plaintiff  and 
unpaid,  but  should  aver  at  the  same  time  that  he  owes  plaintiff 
nothing  thereon.  Would  a  demurrer  to  the  answer  admit  the 
truth  of  this  allegation  ?  Manifestly  not.  In  Gould 's  Pleadings, 
p.  470,  section  25,  it  is  said:  "A  demurrer  though  general, 
never  confesses  an  allegation  which  it  appears  upon  the  face  of 
the  pleadings  that  the  pleader  is  estopped  to  make,  as  if,  having 
pleaded  or  confessed  a  record,  to  which  he  is  a  party,  he  after- 
wards makes  an  averment  contradicting  or  impugning  it." 

Suppose  the  plaintiffs,  instead  of  demurring,  had  gone  to  trial 
upon  the  pleadings.  The  defendant  then  would  not  have  been 
permitted  to  introduce  any  proof  that  the  lands  were  not  adver- 
tised. If,  because  of  the  law  and  the  conditions  of  the  pleadings, 
the  defendant  would  not  have  been  permitted  to  offer  any  proof 
of  this  allegation  upon  the  trial,  it  must  be  true  that  a  demurrer 
to  it  does  not  admit  its  truth. 

The  demurrer  was  properly  sustained. 

Affirmed. 


TAYL0R  V.  BLAKE. 

11  Minn.,  255.     [1865.] 

Wilson,  C.  J. :  This  action  was  brought  to  recover  personal 
property  alleged  to  have  been  obtained  from  the  plaintiff's 
grantor  by  duress.     *     *     * 

It  will  be  observed  that  the  complaint  shows  that  the  arrest 
was  made  by  the  sheriff  of  Olmsted  County,  on  a  warrant  issued 
by  Walter  S.  Booth,  a  justice  of  the  peace,  in  pursuance  of  a 
complaint  made,  as  required  by  law.    The  defendant  demurred 


804  DEMURRERS.  [ChAP.  VI. 

to  the  complaint  on  the  ground  that  it  did  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action,  and  because  there  was  a 
defect  of  parties.  The  demurrer  having  been  sustained  by  the 
court  below,  and  judgment  having  been  entered  for  defendant, 
the  plaintiff  appeals  to  this  court.  There  is  no  doubt  but  that 
money  or  goods  obtained  by  duress  or  undue  influence  may  be 
recovered;  and  the  demurrer  admitting  all  the  material  and 
traversable  allegations  of  the  complaint,  the  question  presented 
to  us  for  determination  is,  whether  the  complaint  shoivs  that  the 
defendant  obtained  the  chattels  in  question  from  Taylor  by 
duress  or  undue  influence.  Did  the  complaint  not  show  that 
Taylor  was  imprisoned  by  process  prima  facie  valid,  perhaps 
the  allegation  that  he  was  unlawfully  imprisoned  might  be  held 
sufficient.  But  it  is  a  general  rule  that  imprisonment  by  order 
of  law  is  not  duress;  to  constitute  duress,  the  arrest,  or  subse- 
quent detention  must  be  tortious  and  unlawful,  and  as  the  com- 
plaint in  this  case  shows  an  arrest  by  an  officer  legally  authorized 
to  make  such  arrests,  and  on  a  warrant  lyrima  facie  valid,  we 
have  no  right  to  presume  that  either  the  arrest  or  subsequent 
detention  was  illegal.  It  is  for  the  plaintiff  to  show  this.  (Tay- 
lor V.  Cottrell,  16  111.,  93 ;  Watkins  v.  Baird,  6  Mass.,  511.)  The 
complaint  and  warrant  were  perhaps  not  in  strict  accordance 
with  the  requirements  of  the  statute,  but  yet  they  were  clearly 
sufficient  to  give  the  court  jurisdiction,  and  to  justify  the  sheriff 
in  making  the  arrest,  and,  therefore,  they  must  be  held  valid 
when  attacked  collaterally,  as  in  this  case.  The  plaintiff's  coun- 
sel insists  that  the  warrant  was  void,  and  the  arrest  illegal,  be- 
cause the  justice  had  no  authority  to  issue  such  warrant  return- 
able before  himself.  This  position  is  taken  on  the  assumption, 
unauthorized  by  any  allegation  of  the  complaint,  that  the  offense 
with  which  Taylor  was  charged  was  committed  ^vithin  the  cor- 
porate limits  of  the  City  of  Rochester,  and  that  the  city  justice 
has  exclusive  jurisdiction  of  such  offense,  and  that  Walter  S. 
Booth  was  not  the  city  justice. 

The  allegation  in  the  complaint,  that  Blake  and  his  servants 
and  agents  ''well  kneiv"  that  the  acts  of  Taylor,  mentioned  in 
the  complaint  and  warrant,  and  upon  which  the  proceedings  be- 
fore the  justice  were  based,  transpired  within  the  corporate 
limits  of  the  City  of  Rochester,  and  that  the  city  justice  had  ex- 
clusive jurisdiction  of  said  proceedings,  is  merely  an  allegation 
of  the  knowledge  of  the  defendant  and  his  agents,  and  is  not  an 


Sec.  1.]  TAYLOR  V.  BLAKE.  805 

allegation  that  the  facts  were  as  it  is  alleged  the  defendant  knew 
them  to  be.  An  issue  joined  on  such  an  allegation  would  have 
been  wholly  immaterial.  The  rule  of  pleading  is  elementary-, 
that  facts  must  be  alleged  directly,  and  not  by  way  of  recital, 
argument,  inference,  or  reasoning;  and  that  recitals,  inferences, 
or  conclusions  are  not  admitted  by  a  demurrer.  We  in  vain  look 
for  a  single  traversable  allegation  of  the  complaint  showing  that 
either  the  arrest  or  detention  was  illegal  or  tortious.     *     *     * 

Judgment  affirmed. 


THOMPSON  v.  FOX. 

47  N.  Y.  S.,  176.     [1897.] 

McAdam,  J. :  The  defendants  having  declined  to  avail  them- 
selves of  the  liberty  to  answer,  given  by  the  order  overruling 
their  demurrer,  final  judgment  went  against  them,  from  which 
this  appeal  is  taken.     *     *     * 

The  complaint  does  not  set  forth  a  cause  of  action  for  "use 
and  occupation."  The  second  paragraph  furnishes  no  aid  to  the 
third,  because  it  affirmatively  appears  that  the  rent  reserved  by 
the  lease  referred  to  in  the  second  paragraph  has  been  fully  paid, 
and  the  lease  does  not  embrace  the  locxis  in  quo. 

The  gravamen  of  the  complaint  is  trespass — that  the  defend- 
ants, without  right,  took  possession  of,  and  wrongfully  used,  cer- 
tain parts  of  the  store  premises  not  covered  by  their  demise,  and 
respecting  which  they  were  not  tenants.     *     *     * 

In  order  to  hold  the  defendants  for  use  and  occupation,  it 
should  have  affirmatively  appeared  that  the  original  entry  upon 
the  premises  not  covered  by  the  demise  was  under  and  by  virtue 
of  the  plaintiff's  permission,  or  that  a  permission  subsequently 
expressed  was  accepted  or  recognized  by  the  defendants,  so  as 
to  show  that  they  consented  to  hold  under  her,  and  in  subordi- 
nation to  her  title.    1  Wood,  Landl.  &  Ten.  (2nd  Ed.),  p.  2. 

' '  Permission  given  by  the  owner  to  one  in  possession  tortiously 
will  not  convert  his  occupancy  into  a  tenancy,  unless  he  accepts 
such  permission,  and  hold  in  pursuance  of  it."  Id.,  p.  16.  The 
mere  ownership  of  the  land  by  one,  and  its  occupation  by  an- 
other, do  not  necessarily  imply  that  the  relation  of  landlord  and 
tenant  exists  between  the  parties,  for  the  mutual  consent  of  their 


806  DEMURRERS.  [ChAP.  VI. 

minds  to  enter  into  such  relation  is  absent,  and  without  this 
union  there  can  be  no  agreement.  White  v.  Corlies,  46  N.  Y., 
467;  1  Par.  Cont.  (6th  Ed.),  475.  One  who  is  ah  initio  a  tres- 
passer cannot  be  a  made  a  tenant  against  his  will  by  the  mere 
election  of  a  person  claiming  title,  for  the  convential  relation  is 
founded  only  on  mutual  consent. 

The  action  has  been  treated  throughout,  both  by  the  plaintiff 
and  the  court  below,  as  one  for  use  and  occupation,  and  the  sub- 
stantial sum  of  $803.75  awarded  to  the  plaintiff  on  the  sole 
theory  of  an  implied  agreement  to  pay.  The  pleader  evidently 
prepared  the  complaint  with  the  design  of  avoiding  the  real 
grievance — trespass  qiiare  clausum  fregii — making  the  action 
resemble,  as  far  as  the  facts  permitted,  one  founded  upon  an 
implied  agreement  creating  the  conventional  relation  of  land- 
lord and  tenant.  With  remedies  so  inconsistent,  it  is  not  surpris- 
ing that  the  pleading  cannot  be  commended  as  a  precedent  for 
either  cause. 

The  plaintiff  succeeded  in  the  court  below  by  disclaiming  tres- 
pass, and  has  not  upon  the  appeal  urged  the  sufficiency  of  the 
plea,ding  as  one  in  that  form.  If  the  complaint  is  sustained,  as 
it  may  be,  by  treating  it  as  one  in  trespass,  the  defendants,  under 
the  circumstances,  ought  to  have  their  day  in  court  to  meet  this 
new  phase  of  the  controversy.  If  the  pleadings  state  such  a 
cause  of  action,  and  we  think  it  does,  it  is  not  demurrable,  what- 
ever the  damages  ultimately  recoverable  may  be.  The  general 
demurrer  interposed  goes  merely  to  defects  of  substance,  and 
not  to  form,  and  lies  only  when  no  cause  of  action  whatever  is 
alleged.  2  Wait.,  Prac.  452,  453;  Otis  v.  Seligman,  67  How. 
Prac,  101;  Johnson  v.  Girdwood,  7  Misc.  Rep.,  651,  28  N.  Y. 
Supp.,  151,  affirmed  143  N.  Y.  660,  39  N.  E.  21 ;  Wetmore  v.  Por- 
ter, 92  N.  Y.,  76 ;  Mitchell  v.  Thorne,  134  N.  Y.,  542,  32  N.  E.  10; 
Sage  V.  Culver,  147  N.  Y.,  241,  41  N.  E.  513.  Regarding  the  com- 
plaint as  in  tort  for  trespass,  the  demurrer  did  not  admit  the 
quantum  of  damages  alleged  (6  Enc.  PI.  &  Prac,  336,  note)  for 
these  could  be  liquidated  only  by  assessment  according  to  pre- 
scribed practice.     (Code  Civ.  Proc,  §1215.) 

The  judgment  must  be  modified,  and  without  costs  either  be- 
low or  in  this  court,  by  reversing  that  portion  thereof  which 
awards  a  recovery  for  the  amount  demanded  in  the  complaint, 
with  a  direction  that  damages  be  assessed  according  to  the  pre- 
vailing practice  in  cases  of  trespass,  with  leave,  however,  to  the 


Sec.  1.]  THOMPSON  v.  fox.  807 

defendants  to  withdraw  their  demurrer,  and  answer  over  on  pay- 
ment, within  10  days,  of  $20  costs.    All  concur. 


McKENZIE  V.  MATHEWS. 
59  Mo.,  99.     [1875.] 

Napton,  Judge,  delivered  the  opinion  of  the  court. 

This  was  a  petition  for  an  injunction.  The  facts  stated  in  the 
petition  were,  that  the  petitioner  was  the  owner  of  a  certain  tract 
of  land  described  therein ;  that  Mathews  &  Brumbach  threatened 
to  commit  waste  on  it,  by  cutting  down  and  hauling  away  timber 
from  it — which  would  be  an  irreparable  loss  to  said  land.  An 
injunction  was  therefore  asked,  to  restrain  said  defendants  from 
cutting  any  timber  or  committing  any  waste  on  said  land,  and  for 
such  other  relief,  etc.  The  application  was  made  to  the  Circuit 
Judge,  at  chambers,  in  August,  1871,  and  an  injunction  was 
directed,  upon  bond  being  given  by  the  petitioner.  The  bond 
was  given  and  the  injunction  issued  August  16th,  1871. 

At  the  May  term,  1872,  of  the  Circuit  Court,  a  demurrer  was 
filed  to  this  petition  on  the  ground  that  the  facts  stated  in  the 
petition  furnished  no  ground  for  the  relief  prayed,  inasmuch 
as  no  insolvency  was  alleged,  nor  was  it  averred  that  there  was 
not  an  ample  and  complete  remedy  at  law ;  nor  was  there  any  al- 
legation that  any  action  was  pending  for  the  possession  of  the 
land  upon  which  defendants  were  said  to  have  an  intention  of 
cutting  timber.  The  demurrer  was  sustained,  but  nothing  fur- 
ther appears  to  have  been  done  at  that  term. 

On  Dec.  10th,  1872,  the  defendants  filed  their  motion  to  dis- 
solve the  temporary  injunction,  and  for  an  assessment  of  dam- 
ages. This  motion  was  sustained  and,  neither  party  requiring  a 
jury,  the  court  proceeded  to  assess  the  damages  upon  the  testi- 
mony submitted. 

The  defendant,  Mathews,  on  this  inquiry,  testified  that  he  had 
a  contract  with  Brumback  to  deliver  to  him  $200  worth  of  lum- 
ber; that  he  had  cut  the  logs  from  which  the  lumber  was  to  be 
sawed,  and  as  he  could  not  use  them,  they  had  greatly  depre- 
ciated in  value,  and  his  loss  on  this  item  he  estimated  at  $180, 
His  expense  attending  court  amounted  to  $13.50.     He  was  also 


808  DEMURRERS.  [ClIAP.  VI. 

prevented  from  clearing-  eight  or  nine  acres  of  land  that  he  in- 
tended to  clear,  and  also  from  making  rails  to  replace  a  fence 
that  had  been  washed  away  by  the  flood,  which  he  estimated  at 
$180.    His  lawyer's  fee  was  $75. 

The  plaintiff  objected  to  this  evidence  because  the  defendants 
admitted  by  their  demurrer,  that  the  facts  stated  in  the  petition 
were  true,  and  that  the  plaintiff  was  the  owner  of  the  land.  This 
objection  was  overruled,  and  the  plaintiff  excepted. 

The  witness  also  stated  that  he  was  in  possession  of  the  land 
and  bought  it  of  the  railroad  company.  To  this  evidence  objec- 
tion was  also  made  on  the  ground  that  the  defendants,  by  their 
demurrer,  admitted  the  ownership  of  the  land.     *     *     * 

The  plaintiff  asked  the  following  declarations  of  law:  "That 
the  defendants  have  admitted  by  their  pleadings  that  the  lands 
mentioned  in  plaintiff's  petition  belonged  to  plaintiff  and  were 
the  property  of  the  plaintiff,  and  hence,  defendants  cannot  re- 
cover any  damages  by  reason  of  being  restrained  from  cutting 
timber  off  from  said  lands ;  2nd,  The  defendants  cannot  recover 
attorney's  fees  for  defending  said  suit;  3rd,  Defendants  cannot 
recover  any  damages  in  this  case  because  there  was  no  answer 
made  by  defendants  to  the  petition,  before  the  dissolution  of  the 
injunction  herein."    These  last  instructions  the  court  refused. 

The  judgment  of  the  court  on  the  subject  of  damages  was  in 
favor  of  the  defendants,  in  the  sum  of  $528. 

There  was  a  motion  to  set  aside  the  finding  and  judgment, 
which  was  overruled;  exceptions  Avere  duly  taken  to  all  the  rul- 
ings of  the  court,  and  the  case  is  brought  here  by  appeal. 

The  judgment  of  the  court  on  the  demurrer  was  obviously 
right.  The  petition  was  substantially  defective  in  almost  all  re- 
spects. It  is  impossible  to  conjecture  from  its  terms  whether  the 
plaintiff  or  defendant  was  in  possesison  of  the  land.  If  the 
plaintiff  was  in  possession,  then  it  is  not  shown  that  an  action 
of  trespass  would  not  have  attained  all  the  objects  desired.  There 
is  no  allegation  of  the  insolvency,  nor  any  sufficient  allegation  of 
irreparable  damages.  The  former  is  not  always  necessary,  but 
in  regard  to  the  latter,  a  general  averment  that  damages  threat- 
ened are  irreparable  is  insufficient.  It  must  be  shown  how,  and 
in  what  way,  and  for  what  reason,  the  threatened  damages  are 
irreparable.  What  damages  are  irreparable  is  a  question  to  be 
decided  by  the  court  from  the  facts  stated. 

If  we  chose  to  infer  from  the  petition  that  the  defendants  were 


Sec.  1.]  m'kenzie  v.   mathews.  809 

in  possession,  then  it  is  a  mere  matter  of  conjecture  what  title 
they  claimed,  if  any;  whether  they  were  lessees  for  years,  or 
tenants  for  life,  or  holding  under  an  asserted  fee  simple  title. 
If  the  title  was  in  dispute  some  proceeding  on  the  part  of  the 
plaintiff  ought  to  have  been  stated,  to  which  the  injunction  would 
have  been  auxiliary. 

The  only  question  in  this  case  is  as  to  the  damages.  It  is  not 
perceived  why  Brumback  was  made  a  party  defendant.  The 
testimony  of  Mathews  that  he  was  prevented  from  clearing  seven 
or  eight  acres  of  land  during  the  pendency  of  the  injunction 
seems  to  be  a  consequential  damage  too  remate;  but  the  only 
objection  to  that  testimony  was,  that  the  demurrer  admitted  the 
title  of  plaintiff.  This  objection  was  overruled  by  the  court  and 
we  think  properly.  A  demurrer  admits  facts  well  pleaded,  but 
only  for  the  purpose  of  deciding  the  question  raised  by  it;  the 
statements  in  the  petition  demurred  to  are  no  evidence  on  the 
question  of  damages,  or  on  the  general  issue.  (Berne  v.  Phillips, 
10  Conn.,  62.)     *     *     * 

The  question  in  regard  to  the  damages  was  one  for  the  jury,  or 
in  this  case  for  the  Circuit  Court,  to  whom  the  facts  were  sub- 
mitted. The  objections  to  the  items  offered  were  insufficient,  and, 
although  we  think,  in  regard  to  the  item  of  two  hundred  dollars, 
which  was  charged  for  being  prevented  from  clearing  seven  or 
eight  acres,  that  it  was  inadmissible  because  too  remote;  yet  as 
the  only  objection  to  it  was,  that  the  demurrer  admitted  the  title 
of  plaintiff,  and  this  objection  was  not  a  valid  one,  we  will  not 

disturb  the  judgment. 

Judgment  affirmed. 


RICE  V.  RICE. 

13  Ore.,  337.     [1886.] 

Lord,  J.:  This  is  a  suit  for  a  divorce.  The  defendant  de- 
murred to  the  complaint  upon  the  ground  that  the  suit  had  not 
been  commenced  within  the  time  prescribed  by  the  statute.  The 
court  below  overruled  the  demurrer,  and  the  defendant  refusing 
to  further  plead,  upon  motion,  a  default  was  taken  for  want  of 
answer,  and  the  suit  referred  to  take  and  report  the  testimony. 
Upon  the  report  of  the  referee,  the  cause  was  heard  by  the  court, 
and  the  decree  rendered,  from  which  this  appeal  is  taken. 


810  DEMURRERS.  [ChAP.  VI. 

The  error  complained  of  is  the  overruling  of  the  demurrer. 
The  Code  provides  that  the  defendant  may  demur  to  the  com- 
plaint when  it  appears  upon  the  face  thereof  *  *  *  that 
the  action  or  suit  has  not  been  commenced  within  the  time  limited 
by  the  Code.  Code,  §  66,  sub.  7 ;  id.  §  385.  But  when  the  suit 
is  for  a  divorce,  it  is  provided  that  "when  the  suit  is  for  any  of 
the  causes  specified  in  subdivisions  3,  4,  5  and  6,  of  section  491, 
the  defendant  may  admit  the  charge,  and  show  in  bar  of  the  suit 
*  *  *  that  the  suit  has  not  been  commenced  within  one  year 
after  the  right  of  suit  accrued."  Code,  §494.  The  contention 
of  the  defendant  is  that  his  demurrer  is  well  taken,  and  in  com- 
pliance with  the  requirements  of  the  statute ;  that  it ' '  admits  the 
charge,  and  directs  attention  to  the  complaint,  upon  the  face  of 
which  it  appears  that  the  suit  was  not  commenced  within  one 
year  after  the  right  of  suit  accrued.  It  is  admitted,  ordinarily, 
in  actions  at  law  or  suits  in  equity,  that,  when  it  appears  from 
the  complaint  that  the  action  or  suit  has  not  been  brought  within 
the  time  limited  by  the  statute  of  limitations,  a  demurrer  is  the 
appropriate  pleading  to  take  advantage  of  the  statute,  and  bar 
the  action  or  suit ;  but  in  suits  for  divorce,  the  plaintiff  contends 
that  the  statute,  in  its  nature,  as  special  and  peculiar,  and  in 
order  for  the  defendant  to  avail  himself  of  it,  he  must  bring 
himself  within  its  terms  and  provisions ;  that  the  language  of  the 
statute  that  "he  may  admit  the  charge,  and  show  in  bar  of  the 
suit,"  etc.,  means  that  he  must  admit  the  charge  as  a  matter  of 
fact,  or  of  evidence,  and  not  as  a  technical  theory  of  law,  before 
he  can  take  advantage  of  it. 

The  real  inquiry,  then,  is  whether  a  demurrer  or  answer  is 
the  proper  pleading  to  take  advantage  of  the  statute.  The  lan- 
guage of  the  statute  is  that  "the  defendant  may  admit  the 
charge,  and  show  in  bar  of  the  suit,"  etc.,  that  is,  admit  the 
truth  of  the  facts  charged  as  facts,  and  show  other  facts  in  bar- 
confess  and  avoid— and  this  is  precisely  what  the  defendant 
claims  is  the  effect  of  his  demurrer.  To  sustain  this  view,  a  de- 
murrer must  be  an  absolute  admission  of  the  facts  demurred  to. 
What  does  a  demurrer  admit  ?  In  his  treatise  on  Pleading,  Mr. 
Gould  says:  "A  demurrer  to  the  declaration  is  not  classed 
among  pleas  to  the  action,  not  only  because  it  may  be  taken  as 
well  to  any  other  part  of  the  pleadings  as  to  the  declaration,  but 
also  because  it  neither  affirms  nor  denies  any  matter  of  fact,  and 
is  not,  therefore,  regarded  as  strictly  a  plea  of  any  class,'  but 


Sec.  1.]  RICE  V,  rice.  811 

rather  an  excuse  for  not  pleading."  Section  43,  e.  2.  "To  de- 
mur is  to  rest  or  pause."  And,  again:  "A  demurrer  merely 
advances  a  legal  proposition — it  forms  an  issue  in  law.  Admit- 
ting the  facts  so  far  as  well  pleaded,  for  the  purpose  of  taking 
the  opinion  of  the  court  preliminarily,  its  language  is:  'Allow- 
ing all  that  is  alleged  to  be  true,  there  is  not  anything  that  calls 
for  an  answer,  plea,  or  defense.'  "    Id.  c.  9. 

In  Pease  v.  Phelps,  10  Conn.,  62,  the  court  says:  **A  de- 
murrer presents  only  an  issue  in  law  to  the  court  for  consider- 
ation; the  jury  have  no  concern  with  it;  and,  although  it  is  a 
rule  of  pleading  that  a  demurrer  admits  facts  well  pleaded  for 
the  sole  purpose  of  determining  their  legal  sufficiency,  yet,  as  a 
rule  of  evidence,  it  was  never  supposed  that  a  demurrer  ad- 
mitted anything."  In  Tompkins  v.  Ashby,  Moody  &  M.,  32,  it 
was  held  that  a  demurrer  or  plea  to  a  bill  in  equity  does  not  ad- 
mit the  facts  charged  in  it,  so  as  to  be  evidence  against  a  defend- 
ant, if  those  facts  arise  in  a  future  action  between  the  same 
parties ;  Abbott,  C.  J.,  remarking  that  it  was  nothing  more  than 
saying  "that,  supposing  the  facts  charged  to  be  true,  the  defend- 
ant is  not  bound  to  answer." 

Mr.  Bliss  says:  "In  denying  the  legal  conclusions  from  the 
facts  pleaded,  the  admission  of  their  truth  as  facts  is  necessarily 
implied,  and  the  old  rule  was  stated,  substantially,  that  the 
truth  of  a  pleading  not  obnoxious  to  a  general  demurrer  was  ad- 
mitted ;  or,  more  briefly,  that  a  demurrer  admitted  the  facts  well 
pleaded.  Thus,  if  the  demurrer  is  overruled,  and  the  pleading 
demurred  to  thus  held  to  be  good,  unless  the  demurrer  is  with- 
drawn, judgment  will  be  necessarily'  rendered  against  the  party 
demurring,  because  he  has  admitted  the  truth  of  the  pleading; 
that  is,  has  confessed  the  facts  held  to  constitute  a  cause  of  action 
or  defense.  Such  is  the  theory,  and  yet  it  is  improperly  called 
an  affirmative  admission.  Nothing  is,  in  fact,  admitted.  The 
demurrant  simply  denies  the  proposition  of  law  involved  in  the 
pleading  demurred  to,  and  the  parties  go  to  trial  upon  an  issue 
of  law,  and  if  the  issue  is  founded  against  him,  judgment  goes 
against  him.  The  facts  are  admitted  only  because  they  are  not 
denied."    Bliss,  Code  PI.  §418. 

A  demurrer,  then,  is  not  an  absolute  admission.  Its  only 
office  is  to  raise  issues  of  law,  upon  the  facts  stated  in  the  plead- 
ings demurred  to.  Nor,  as  Crockett,  J.,  said,  is  "the  effect  of 
a  demurrer  to  set  out  the  facts.     On  the  contrary,  all  the  facts 


812  DEMURRERS.  [ClIAP.  VI. 

involved  in  a  demurrer  are  those  alleged  in  the  pleading  de- 
murred to,  and  the  demurrer  merely  raises  a  question  of  law  as 
to  the  sufficiency  of  the  facts  to  constitute  a  cause  of  action  or 
defense."  Brennan  v.  Ford,  46  Cal.,  12.  When  allegations  in 
a  pleading  are  admitted  for  the  purpose  of  a  demurrer,  they  are 
admitted  for  that  purpose  only,  and  should  not  be  commented 
upon  by  the  court  as  if  they  were  de  facto  true.  Day  v.  Brown- 
rigg,  10  Ch.  Div.  294.  It  is  a  pleading  by  which  one  of  the 
parties  in  effect  says  that  the  facts  stated  by  the  adverse  party 
in  his  pleading,  even  assuming  them  to  be  true,  do  not  sustain 
the  contention  based  on  them,  or,  in  a  word,  do  not  show  a  good 
cause  of  action  or  defense.  This  is  not  admitting  the  facts 
charged  as  de  facto  true.  It  is  simply  admitting  the  facts  for  the 
sole  purpose  of  presenting  their  sufficiency  to  the  court  for  de- 
termination; or  eqivalent  to  saying:  "If  the  facts  be  so,  the  de- 
fendant is  not  bound  to  answer."  Now,  this  is  not  the  kind  of 
pleading,  or  the  admission  required  by  the  pleading,  which  the 
statute  contemplates.  It  requires  the  admission  of  the  charge  as 
a  fact,  not  assumed  to  be  true  for  the  purpose  of  ascertaining 
its  legal  sufficiency,  but  confessed  to  be  true  as  an  actual  fact, 
and  a  showing  of  other  facts  in  avoidance  or  bar  of  the  suit. 
This  cannot  be  done  by  demurrer,  for  its  office  is  not  to  set  out 
facts.  The  statute  evidently  contemplates  that  the  charge  ad- 
mitted, and  the  other  facts  shown  in  bar  of  the  suit,  by  the  de- 
fendant, shall  be  embraced  in  one  pleading  to  accomplish  this 
result.  It  says:  "The  defendant  may  admit  the  charge,  and 
show  in  bar  of  the  suit  that  the  act  complained  of  was  committed 
by  the  procurement  of  the  plaintiff,  or  that  it  has  been  expressly 
forgiven,  or  that  the  suit  has  not  been  commenced  within  one 
year  after  the  right  of  suit  accrued."  A  demurrer  cannot  per- 
form the  office  contemplated  by  this  provision.  If  a  demurrer 
were  such  a  solemn  admission  upon  record  as  claimed  by  counsel, 
then  it  might  be  used  against  the  defendant  upon  a  subsequent 
trial  of  an  issue  of  fact,  and  it  would  become,  like  other  admis- 
sions, a  part  of  the  law  of  evidence ;  yet,  as  evidence,  we  all  know 
that  it  admits  nothing  whatever. 

There  was  no  error.    The  decree  of  the  court  below  is  affirmed, 
with  costs  and  disbursements. 


Sec.  1.]  KATON  V.  noutii.  81:{ 

i^:at()n  v.  Noirrii. 
:>5  Wis.,  r,jf.    I  /.v?7;.  I 

The  phiiiilirr  jippcjilcd  fiodi  iiii  <>r(l<'i'  ov^-rniliii^'  his  (J<Mriurrcr 

to   llie  illlSVVCI". 

Dixon,  (J.  .).:  On  iu-^uincnl,  ol'  (Icumrrcr,  Jud^niiciil,  will  b"' 
af^^airisl  tfic  parly  whose  (irsl  pleading'  is  bad  in  siibslaiicc.  The 
complaint,  in  this  ciisc  is  dcrccliv*!  in  not  showing'  thiii  IIk-  [)liiiii- 
1,i(T  lijid  ;i  ri<^lil,  lo  ivdcciii  llic  hind  rroin  taxes  ut  tlic  time  it,  is 
allc^^vd  th;d,  he  did  so.  TIk;  cornphiint,  is  iin<lor  ('.hapt,<!r  22,  haws 
of  IHf)!),  iJi)()n  a  lax  deed  cxcfMitcd  DcccMibci-  .'H,  IHCT,  to  ori(!  [1. 
Eugene  Eastman,  in  ixiisniincc  of  a  sale  ol"  th(!  land  nic/itod  to 
hav(!  been  miidc  in  the  year  IHIO.  The  j)laird,in"  claims  title 
under  E;isttrian,  hy  (h'vd  dated  October  Hi,  IHfiH.  The  r(!(l<'mp- 
tion  of  the  hind  Trotii  tax  sides,  for  whi(;h  the  plaintifT  (claims  a 
li(3n,  is  charj^ed  to  have  be(!n  ma<h!  by  him  in  18(i;{.  TIk;  com- 
plaint fails  to  show,  th(;r(d'ore,  that  th<!  [)hiintirr  had,  at  the;  tim(» 
of  such  allof^ed  redemption,  ;iny  interest  in  or  lien  u[)on  the  hind 
which  would  autliorize  him  t,o  re(Jeem  ;  and  it  conse(pi(!ntly  ap- 
pears tliJit  the  (;ertifi(ta1<'s  for  tlu;  sarru;  tax  sal(!S  in  the  hniids  of 
the  defendiint  iin<l  owned  by  him,  as  ;iverred  in  that  part  of  the 
answer  demurred  t,o,  are  valid  as  ;ij,'ainst  the  lien  or  claim  of  the 
plaintiff  with  resfx'ct  thenito  set  up  in  the  com[)laint.  With  no 
title  to  or  int^erest  in  the  hind  ;it  the  time,  the  plaintiff  could 
not  redeem,  so  as  t,o  (Je[)rive  the  defendant  of  his  lien  or  intfirest 
acquinid  by  virtu<!  of  the  certificat(!S. 
By  the  Court. — Order  affirmed. 


SIIIKK  v.   ANDREWS. 

92  I nd.,  509.     \188.'L\ 

EiJ.iOT,  J.:  The  complaint  of  the  jippelhint  alle^'cs  that  hf! 
was  the  holder  of  several  notes  executed  by  Isaac  Ii(!al ;  that  to 
secure  their  f);iyment  lie;il  ex.ciited  ;i  mortuiHi^o,  on  ei«:hty  acres 
of  land;  that  Flora  Andrews,  Wic  af)pellee,  purchased  an  int(!r(!st 
in  the  land  with  full  hnowledw  of  apf)e|larit's  mort^a^'*;;  tfiat 
after  her  purchase,  but  without  ;iny  knowledjj^e  of  it,  Ik^  insti- 
tuted a  suit  for  foreclosure,  and  obtJiiufid  a  decre*;;  on  this  (Je'creo 


814  DEMURRERS.  [ChaP.  VI. 

the  land  was  sold  and  bought  h)y  him ;  that  appellee  was  not  made 
a  defendant  to  the  action,  for  the  reason  that  the  appellant  be- 
lieved the  land  to  be  owned  by  her  husband,  who  was  at  one  time 
the  owner;  that  after  the  execution  of  a  deed  by  the  sheriff,  the 
appellant  sold  and  conveyed  the  land  to  Jacob  Krieg,  and  that 
he  prosecutes  the  action  for  Krieg's  benefit. 

The  second  paragraph  of  the  appellee's  answer  sets  forth  the 
proceedings  in  the  foreclosure  suit,  the  sale  thereon,  and  avers 
that  the  mortgage  and  judgment  were  thereby  satisfied.  To  this 
answer  a  demurrer  was  overruled,  and  upon  this  ruling  rests 
the  assignment  of  error. 

Appellee  makes  the  point  that  even  if  the  answer  was  bad  it 
was  not  error  to  overrule  the  demurrer,  because  it  appears  on  the 
face  of  the  complaint  that  the  appellant  is  not  the  proper  i)lain- 
tif'f.  It  is  true  that  the  rule  is  that  the  demurrer  to  an  answer 
will  search  the  record,  and  if  the  complaint  is  bad,  there  will  be 
no  error  in  overruling  it,  even  if  the  answer  is  bad;  but  this  gen- 
eral rule  does  not  apply  where  the  question  is  as  to  the  parties. 
It  applies  only  where  the  merits  of  the  action  are  involved.  Gen- 
erally, the  question  of  proper  parties  can  only  be  raised  by 
answer  or  demurrer,  and  we  think  that  it  should  be  held  in  this 
case  that  the  question  as  to  whether  the  appellant  was  the  real 
party  in  interest  ought  to  have  been  raised  by  demurrer  or  an- 
swer. Prior  to  the  act  of  1881  (R.  S.  1881,  section  1073),  a  deed 
made  while  another  was  in  adverse  possession  was  inef- 
fectual, and  actions  to  recover  possession  or  quiet  title  must 
have  been  brought  by  the  grantor,  and,  as  this  case  is  governed 
by  the  old  rule,  it  may  well  be  doubted  whether  it  was  not  prop- 
erly brought  in  the  name  of  the  appellant.  But,  without  decid- 
ing this  precise  question  and  confining  our  decision  to  the  ques- 
tion as  it  is  here  presented,  we  hold  that  the  point  of  appellee  is 
not  well  taken. 

As  the  appellee  was  not  a  party  to  the  foreclosure  suit,  the 
decree  does  not  bind  her,  and  as  there  was  no  decree  against  her, 
it  results  that  the  mortgage  as  to  her  was  neither  merged  nor 
satisfied.  It  left  in  her,  untouched,  the  equity  of  redemption. 
Ilosford  V.  Johnson,  74  Ind.,  479. 

We  understand  it  to  be  well  settled  that  if  the  owner  of  an 
equity  of  redemption  is  not  made  a  party  to  the  suit,  a  subse- 
(juent  suit  may  be  brought  to  compel  him  to  redeem,  and  to  se- 
cure a  decree  barring  his  equity  of  redemption.    The  rule,  as  we 


Sec.  1.]  GARRETT   V.   TROTTER.  815 

hold  it  to  exist,  is  thus  stated  by  Mr.  Jones:  "If  the  owner  of 
the  equity  has,  through  mistake,  not  been  made  a  party,  the  mort- 
gagee who  has  purchased  at  the  sale  may  maintain  a  second 
action  to  foreclose  the  equity  of  such  owner,  and  for  a  new  sale, 
but  he  cannot  recover  the  costs  of  the  previous  sale.  2  Jones 
Mortg.,  section  1679. 

Judgment  reversed. 


GARRETT  v.  TROTTER. 

65N.C.,430.     [1871.] 

Pearson,  C.  J. :  It  appears  by  the  record  that  the  controversy 
between  the  parties  is  in  regard  to  a  lease  for  a  terra  of  three 
years,  which  the  defendants  allege  the  plaintiff  made  to  Fields. 

This  allegation  is  denied  by  the  plaintiff,  issue  is  joined  and 
comes  on  for  trial ;  but  a  motion  is  made  by  the  counsel  of  the 
defendants  in  medias  res,  and  the  action  is  dismissed,  without 
the  merits  of  the  case  being  touched. 

The  first  reflection  suggested  by  this  state  of  facts  must  be 
under  a  Code  of  Civil  Procedure,  professing  its  main  object  to 
be,  to  have  every  case  decided  "upon  the  merits,"  and  to  this 
end  abolishing  the  distinction  between  actions  at  law  and  suits 
in  equity,  and  all  the  forms  of  such  actions  and  suits,  C.  C.  P., 
Sec.  112;  abolishing  all  the  forms  of  pleading  heretofore  exist- 
ing Sec.  91 ;  declaring  no  variance  shall  be  deemed  material, 
unless  it  has  actually  misled  the  adverse  party  in  maintaining 
the  merits  on  his  side.  Sec.  128;  and  allowing  amendments  on  a 
scale  so  liberal  that  it  may  well  be  said  "anything  may  be 
amended  at  any  time ; ' '  for,  before  or  after  judgment,  the  plead- 
ing, process  or  judgment  may  be  amended  by  "inserting  other 
allegations  material  to  the  case,"  and  by  "conforming  the  plead- 
ing or  proceeding  to  the  facts  proved,"  Sees.  131,  132.  How  does 
it  happen  that  a  case  could  thus  go  off,  without  touching  merits  ? 

There  is  error  on  the  grounds: 

1.  The  complaint  alleges  that  the  defendants  are  in  possession 
of  the  land,  and  withhold  the  same  to  her  damage,  one  hundred 
dollars. 

The  answer  admits  that  the  defendants  are  in  po&session  of 
the  land,  but  denies  that  they  withheld  the  same  from  the  plain- 
tiff, illegally,  as  Is  alleged  in  the  complaint;  and  then  avers  the 


816  DEMURRERS.  [ChAP.  VI. 

fact  of  a  lease  by  her  for  a  term  of  three  years,  which  is  unex- 
pired. 

Admit  that  the  complaint  is  defective  in  this,  it  does  not  al- 
lege in  so  many  words  that  the  defendants  illegally  and  wrong- 
fully withhold  the  possession  from  the  plaintiff;  although  as  the 
C.  C.  P.  requires  a  statement  of  the  facts  to  be  "plain  and  con- 
cise, without  unnecessary  repetition, ' '  section  13 ;  and  a  state- 
ment in  "ordinary  and  concise  language  without  repetition," 
section  100 ;  it  might  well  be  questioned  whether  the  complaint  be 
defective  in  this  particular.  But  supposing  it  to  be  so,  the  de- 
fect is  aided  by  the  answer,  which  shows  that  defendants  under- 
stood the  complaint  to  charge  an  illegal  withholding  of  the  pos- 
session. 

"A  defect  in  pleading  is  aided,  if  the  adverse  party  plead 
over  to,  or  answer  the  defective  pleading  in  such  manner  that  an 
omission,  or  informality  therein,  is  expressly  or  impliedly  sup- 
plied or  rendered  formal  or  intelligible." 

The  following  are  a  few  instances  of  an  express  aider :  In  an 
action  of  debt  on  a  bond,  when  the  declaration  specified  no  place 
at  w^hicli  the  bond  was  made,  it  was  held  that  a  plea  of  duress, 
''apud  B.,"  supplied  the  omission  in  the  declaration,  as  such  a 
plea  contained  a  distinct  admission  that  the  bond  was  made  at 
the  place  where  the  duress  was.  In  an  action  for  slander,  when 
the  declaration  averred  that  the  plaintiff  was  foresworn,  without 
saying  how,  it  was  determined  that  this  defect  was  aided  by  a 
plea  of  justification,  which  alleges  that  the  plaintiff,  who  was 
stated  in  the  declaration  to  be  a  constable,  had  taken  a  false  oath 
at  the  sessions.  And  again  in  an  action  of  trespass  for  taking  a 
book,  when  the  plaintiff  omitted  to  state  that  it  was  his  book,  or 
that  it  was  in  his  possession,  and  the  defendant  in  his  plea,  justi- 
fied the  taking  the  book  out  of  the  plaintiff's  hand;  the  court 
held,  on  motion  in  arrest,  that  "the  omission  in  the  declaration 
was  supplied  by  the  plea."  1  Chitty  Plead.,  671.  Our  case 
furnishes  another  apt  illustration  of  the  principle  of  aider,  by 
admissions  express  or  implied  in  pleading  over.  It  was  said 
the  Code  of  Civil  Procedure  nowhere  adopts  the  doctrine  of 
"aider"  by  admissions  in  pleading  over.  The  principle  com- 
mends itself  so  strongly  by  its  good  sense,  that  it  must  be  taken 
to  underlie  every  system  of  procedure,  professing  to  aim  at  the 
furtherance  of  justice,  and  to  put  controversies  upon  their  merits, 
and  not  allow  actions  to  go  off  upon  subtleties  and  refinements. 


Sec.  1.]  GARRETT   V.   TROTTER.  817 

We  have  seen  also  that  the  Code  of  Civil  Procedure  is  much 
more  liberal  in  its  provisions  to  meet  the  merits  of  controversies, 
than  the  system  of  procedure  in  England,  even  after  the  statutes 
of  jeofails  and  amendments,  and  the  statute  4  Anne,  requiring 
all  defects  in  form  to  be  specially  assigned  as  cause  of  demurrer ; 
and  it  may  be  added,  that  in  regard  to  demurrers,  the  C.  C.  P. 
improves  upon  the  statute  of  Anne,  and  requires  every  demurrer, 
whether  for  substance  or  form,  to  specify  distinctly  the  grounds 
of  objection  to  the  complaint,  sec.  96;  Love  v.  Com'rs  of 
Chatham,  64  N.  C,  706.  When  there  is  a  defect  in  substance 
as  an  omission  of  a  material  allegation  in  the  complaint,  it  is  a 
defective  statement  of  the  cause  of  action;  and  the  demurrer 
must  specify  it,  to  the  end  that  it  may  be  amended  by  making  the 
allegation.  And  when  there  is  a  statement  of  a  defective  cause 
of  action,  the  demurrer  must  specify,  to  the  end  that  as  there  is 
no  help  for  it,  the  plaintiff  may  stop  his  proceeding  without  fur- 
ther useless  incurring  of  costs.  The  distinction  between  a  de- 
fective statement  of  a  cause  of  action,  and  a  statement  of  a  de- 
fective title  or  cause  of  action,  is  made,  1  Chitty  Plead.,  681,  and 
may  be  illustrated  by  two  instances. 

1.  The  complaint  alleges  that  the  defendant,  as  constable,  col- 
lected money  for  the  plaintiff,  and  failed  to  pay  it  over ;  omitting 
to  allege  a  demand.  Here  is  a  defective  statement  of  a  cause  of 
action.  The  complaint  alleges  that  the  plaintiff  is  the  assignee 
of  a  reversion  after  a  term  of  years;  that  at  the  time  of  the 
assignment  there  was  rent  arrear  due  by  tlje  defendant,  the 
lessee  for  years,  and  the  plaintiff  demands  this  rent  arrear.  Here 
is  a  statement  of  a  defective  title  or  cause  of  action.  The  dis- 
tinction is  a  clear  one,  and  leads  to  important  differences. 

2.  It  is  a  rule  in  every  system  of  procedure;  "good  matter 
must  be  taken  advantage  of,  in  due  form,  apt  time  and  proper 
order. ' '  Had  the  supposed  defect,  in  omitting  to  allege  that  the 
withholding  of  possession  was  illegal,  been  set  out  as  ground  of 
demurrer,  the  plaintiff  could  have  amended;  or  if  it  had  been 
taken  in  arrest  of  judgment,  after  verdict,  the  plaintiff  could 
have  amended  ore  temis,  or  availed  himself  of  the  principle  that 
certain  defects  of  substance,  as  well  as  form,  are  cured  by  ver- 
dict. This  is  a  well-settled  principle.  It  is  thus  stated  by  Sear- 
geant  Williams  in  his  notes  to  Saunders'  Reports,  1  Vol.  228, 
note  1.  "When  there  is  any  defect  or  omission  in  any  plead- 
ing, whether  in  substance  or  form,  which  would  have  been  a  fatal 


818  DEMURRERS.  [ChAP.  VI. 

objection  upon  demurrer;  yet  if  the  issue  joined  be  such,  as 
necessarily  required  on  the  trial  proof  of  the  facts  so  defectively 
stated  or  omitted,  and  without  which  it  is  not  to  be  presumed 
that  either  the  judge  would  direct  the  jury  to  give  or  the  jury 
would  have  given  the  verdict;  such  defect,  imperfection  or  omis- 
sion is  cured  by  the  verdict,  by  the  common  law,  or  in  the 
phrase  often  used  upon  the  occasion,  such  defect  is  not  any 
jeofail  after  verdict." 

In  our  case  the  objection  was  not  taken  in  apt  time,  or  in 
proper  order;  but  in  the  midst  of  the  trial,  all  evidence  on  the 
part  of  the  plaintiff  is  ruled  out,  and  her  action  dismissed,  thus 
depriving  her  of  the  benefit  of  the  principle  of  certain  defects 
being  cured  by  verdict,  if  it  applied  to  the  case;  and  at  all 
events  depriving  her,  of  the  right  to  amend  ore  tenus,  "by  insert- 
ing other  allegations  material  to  the  case,"  and  by  "conforming 
the  pleading  or  proceeding  to  the  facts  proved,"  C.  C.  P.,  sees. 
131,  132.  This  irregularity  furnishes  a  second  ground  upon 
which  the  plaintiff  is  entitled  to  have  the  judgment  set  aside,  and 
a  venire  de  novo  awarded. 

It  was  said  upon  the  argument,  the  C.  C.  P.  prescribes  no 
order  or  time  for  taking  objections,  and  reliance  was  put  upon 
sec.  99:  "If  no  such  objection  be  taken  either  by  demurrer  or 
answer,  the  defendant  shall  be  deemed  to  have  waived  the  same, 
excepting  only  the  objection  to  the  jurisdiction  of  the  court ;  and 
the  objection  that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action." 

The  counsel  for  the  defendant  and  his  Honor,  fell  into  error, 
by  not  adverting  to  the  distinction  above  referred  to  between  a 
defective  statement  of  a  cause  of  action  and  a  statement  of  a 
defective  cause  of  action.  There  is  a  like  distinction  between  a 
defect  of  jurisdiction  in  respect  to  the  subject  of  the  action,  and 
a  want  of  jurisdiction  in  respect  to  the  person ;  for  illustration : 
Action  in  a  Superior  Court  upon  a  note  for  less  than  .$200 ;  here 
,  there  is  a  defect  of  jurisdiction  in  respect  to  the  subject  of  the 
action;  it  cannot  be  helped  by  waiver,  consent,  amendment  or 
<  otherwise,  and  the  sooner  the  proceeding  is  stopped  the  better. 
Action  in  the  County  of  Orange,  against  the  Charlotte  &  Colum- 
bia R.  R.  Co.;  here  is  a  want  of  jurisdiction  in  respect  to  the 
person,  which  may  be  waived  by  consent,  or  by  making  full  de- 
fense or  pleading  by  an  Attorney  of  the  Court. 

If  at  any  time  it  appears  that  the  court  has  no  jurisdiction  of 
52 


Sec.  2.]  garrett  v.  trotter.  819 

the  action,  or  that  the  plaintiff  has  no  cause  of  action,  the  Court 
may  stop  the  proceedings  and  dismiss  the  action,  for  it  is  idle 
to  go  further;  but  when  the  objection  grows  out  of  a  defective 
statement  of  the  cause  of  action,  the  Court  cannot  stop  in  the 
midst  of  the  trial  of  an  issue  and  dismiss  the  action;  for,  the 
plaintiff  is  thereby  deprived  of  the  advantage  of  having  the  de- 
fect or  omission  in  the  statement  of  his  cause  of  action  cured  by 
verdict,  which  is  a  principle  of  the  common  law,  and  does  not 
depend  upon  a  provision  of  the  C.  C.  P.,  provided  the  case  falls 
within  the  application  of  the  principle ;  and  at  all  events  he  is  de- 
prived of  the  privilege  of  amending,  secured  to  him  by  the 
C.  C.  P.,  by  having  the  pleading  and  proceedings  made  to  con- 
form to  the  facts  proved,  which,  of  course,  he  cannot  avail  him- 
self of,  should  the  testimony  be  all  ruled  out,  and  the  action 
abruptly  terminated,  instead  of  proceeding  in  the  trial  of  the 
issue,  and  hearing  the  evidence  which  the  parties  have  come  pre- 
pared to  offer.  After  verdict,  the  defendant  may  make  the  objec- 
tion by  motion  in  arrest. 

Judgment  reversed. 


Section  2.     Grounds  of  Demurrer. 

ARTHUR  V.  RICKARDS. 
48  Mo.,  298.     [1871.] 

Currier,  Judge,  delivered  the  opinion  of  the  court. 

The  court  sustained  a  demurrer  to  the  petition  and  dismissed 
the  suit.  The  judgment  of  dismissal  was  informal,  but  it  was 
final  and  fatal  to  the  plaintiff's  action.  The  dismissal  termi- 
nated the  suit  in  the  circuit  court,  and  the  plaintiff  was  com- 
pelled either  to  submit  to  the  consequences  or  bring  the  cause 
here. 

The  defendant  demurred  upon  the  ground  that  another  suit 
was  then  pending  between  the  same  parties  and  for  the  same 
action.  It  is  not  pretended  that  the  petition  shows  any  such  fact. 
The  demurrer  should,  therefore,  have  been  overruled.  The 
statute  is  clear  and  expression  this  uoint.  (Gen.  Stat.  1865,  p. 
658,  Sec.  6.) 

Judgment  reversed  and  cause  remanded. 


820  DEMURRERS.  [ChaP.  VI. 

VON  GLAHN  v.  DEROSSETT. 
76  X.  C,  292.     [1877.] 

Pearson,  C.  J. :  In  Von  Glahn  v.  Harris,  73  N.  C,  323,  it  is 
held  that  one  creditor  could  not  maintain  an  action  against  one 
stockholder;  but  that  the  action  should  be  in  the  nature  of  a 
* '  creditors '  bill, ' '  in  the  name  of  one  or  more  of  the  creditors  in 
behalf  of  themselves  and  all  of  the  other  creditors  who  may 
choose  to  become  plaintiffs  against  all  of  the  stockholders. 

Accordingly  this  action  is  by  Von  Glahn  and  the  other  credit- 
ors against  DeRossett,  Kidder,  and  others,  who  are  all  of  the 
stockholders  knoM'n  to  plaintiff's,  with  leave  to  make  defendants 
any  other  stockholders  who  may  become  known  to  the  plaintiffs. 

DeRossett  and  the  others  defend  by  way  of  answer,  except 
Kidder,  who  defends  by  way  of  demurrer. 

The  case  now  comes  before  us  on  the  demurrer  of  Kidder. 

This  is  a  novel  mode  of  procedure  and  we  are  not  willing  to 
allow  the  case  to  be  split  up  in  that  way.  The  defendants  are 
under  a  joint  liability;  their  interest  in  the  questions  involved 
is  identical  and  much  obscurity  and  confusion  will  result  from  a 
severance  in  the  mode  of  defence.  TVhen  there  is  but  one  defend- 
ant he  is  not  allowed  to  demur  and  also  to  answer ;  after  the  de- 
murrer is  overruled  he  can  put  in  an  answer,  but  he  cannot 
defend  in  both  modes  at  the  same  time.  That  would  be  double 
pleading  in  a  way  not  provided  for  by  the  statute  of  Anne.  *  *  * 

The  second  ground  of  demurrer  is  the  subject  of  another  objec- 
tion. It  is  "a  speaking  demurrer,"  as  styled  by  the  books.  That 
is,  in  order  to  sustain  itself,  the  aid  of  a  fact  not  appearing  upon 
the  complaint  is  invoked,  to-wit :  the  allegation  that  at  the  ex- 
piration of  the  charter,  the  Bank  held  a  fund  which  should  first 
be  applied  to  the  satisfaction  of  the  debts  of  the  plaintiffs. 
VThether  there  be  any  fund  left  on  hand  at  the  expiration  of  the 
charter  of  the  bank  is  a  question  of  fact  that  cannot  be  inquired 
into  upon  demurrer,  which  raises  only  an  issue  of  law  in  regard 
to  the  cause  of  action  set"  forth  in  the  complaint.     *     *     * 

Judgment  reversed. 


Sec.  2.]  Roberts  v.  johannas.  821 

ROBERTS  V.  JOHAXXAS. 
41  TT/s..  616.     [1877.] 

Cole,  J. :  In  this  case  the  demurrer  must  be  treated  as  one  to 
the  whole  answer.  If,  therefore,  the  answer  contains  matters 
constituting  a  defense  to  the  action,  which  is  in  substance  good, 
however  informally  or  inartificially  stated,  the  demurrer  was 
properly  overruled.  We  think  the  answer  does  deny  that 
the  property  described  in  the  complaint  ever  came  to  the  pos- 
session of  the  defendant.  But  it  is  said  by  the  learned  counsel 
for  the  plaintiff  that  the  answer  in  that  respect  is  faulty,  be- 
cause it  denies,  in  the  words  of  the  complaint,  that  at  a  particu- 
lar day  the  defendant  had  possession  of  the  property,  and  thus 
amounts  to  a  negative  pregnant,  that  on  some  other  day  the  de- 
fendant had  possession.  The  criticism  is  not  sustained  by  the 
averment,  which  is  as  follows:  ''The  defendant  denies  that  at 
the  time  stated  in  the  complaint,  or  at  any  other  time,  the  prop- 
erty described  in  the  complaint  came  into  the  possession  of  the 
defendant,  or  that  the  same  was  or  remained  in  his  possession 
at  the  time  of  the  commencement  of  this  action,  as  alleged. ' '  This 
is  a  denial  that  at  any  time  the  property  came  to  the  possession  of 
the  defendant,  and  states  a  complete  defense.  It  surely  does  not 
imply  that  the  defendant  had  possession  at  some  other  day  than 
the  one  named,  so  as  to  admit  the  material  fact  of  possession. 
The  objection  is  not,  therefore,  well  taken  to  that  part  of  the 
answer. 

But  the  other  portions  of  the  answer  seem  to  us  bad  in  sub- 
stance. It  is  not  alleged  that  the  stallion  therein  mentioned  is 
one  of  the  animals  mentioned  in  the  complaint,  nor  that  he  was 
over  two  years  old  and  suffered  to  run  at  large,  so  as  to  come 
within  the  provisions  of  ch.  93,  Laws  of  1870.  Had  the  demurrer 
been  confined  to  that  portion  of  the  answer,  it  should  have  been 
sustained.  But  it  amounts  to  a  demurrer  to  the  whole  answer, 
and,  for  the  reasons  given,  was  properly  overruled. 

By  the  Court — The  order  of  the  circuit  court  is  affirmed.* 


♦Accord:     Dallas  v.  MacKenzie,  94  U.  S.  660. 


822  DEMURRERS.  [ChAP.  VI. 

HAYDEN  V.  ANDERSON. 

17  Iowa,  158.    [1864.] 

Cole,  J. :  I.  A  demurrer  is  proper  where  a  pleading  appears 
on  its  face  to  be  defective  either  in  substance  or  form;  it  is  a 
declaration  that  the  party  demurring  will  go  no  further,  because 
the  other  has  not  shown  sufficient  matter  against  him  to  require 
an  answer:  1  Chitty  on  Plead.,  661.  A  demurrer  admits  the 
facts  pleaded,  but  controverts  their  legal  sufficiency.  A  demur- 
rer, then,  can  only  be  properly  interposed  where  the  party  con- 
troverts the  legal  sufficiency  of  the  matter  stated  in  the  entire 
count  or  petition.  It  is  not  competent  to  assail  a  clause,  or  a 
sentence,  or  several  clauses  or  sentences  in  a  count  or  petition  by 
demurrer.  A  demurrer  is  not  a  pruning  hook,  with  which  to  rid 
a  pleading  of  foreign  or  improper  matter ;  nor  is  it  a  sword,  with 
which  to  attack  and  cut  off  redundant  or  impertinent  averments 
in  a  pleading.  If  a  count  in  a  pleading  contains  sufficient  state- 
ments to  constitute  a  cause  of  action  or  defense,  it  is  not  vulner- 
able to  a  demurrer,  although  it  may  contain  very  much  of  for- 
eign, improper,  redundant,  impertinent  or  scandalous  matter. 
Nor  can  such  matter  be  reached  by  demurrer;  and,  therefore,  a 
so-called  demurrer  "to  all  that  part,"  or  "to  so  much  as  sets 
up,"  etc.,  in  a  certain  count,  does  not  rise  to  the  dignity  of  a 
demurrer,  and  is  not  entitled  to  its  name,  and  whenever  suf- 
ficient matter  is  stated  in  such  count  to  constitute  a  cause  of 
action  or  defense,  such  so-called  demurrer  should  be  overruled.* 


DODGE  V.  COLBY. 

108  N.  Y.,  445.^     [1888.] 

RuGER,  C.  'J. :  We  concur  in  the  conclusions  reached  by  that 
court  in  respect  to  this  portion  of  the  complaint.  The  counts 
referred  to,  we  think,  under  the  liberal  system  established  by  the 
code,  each  clearly  stated  a  good  cause  of  action  in  trespass  quare 
clausum  f regit,  and  entitled  the  plaintiff,  if  sustained,  to  recover 

*See,  also,  O'Haver  v.  Shidler,  26  Ind.  278. 

tFor  the  statement  of  this  case,  see  ante,  p.  785. 


Sec.  2.]  dodge  v.  colby.  823 

for  all  damages  accruing  to  him  from  the  acts  described  therein. 
It  constitutes  no  answer  to  this  proposition  that  the  plaintiff 
might  have  recovered,  upon  the  facts  stated,  some  of  the  damages 
alleged  to  have  been  sustained  by  him,  in  an  action  of  trover,  so 
long  as  the  gravamen  of  the  charge  was  the  unlawful  intrusion 
upon  his  real  estate.  The  cutting  and  tapping  of  trees  con- 
stituted the  real  basis  of  the  damages  claimed.  While  the  counts 
referred  to,  each  allege  the  value  of  the  timber  and  turpentine 
claimed  to  have  been  carried  away  from  the  premises  of  the  plain- 
tiff, this  is  merely  incidental  to  the  trespass  alleged,  and  the 
complaint  concludes  with  a  general  prayer  for  judgment  which 
would  recover  the  damages  arising  from  the  alleged  unlawful 
entry  upon  the  plaintiff! 's  lands  and  the  trespasses  committed 
thereon,  as  well  as  the  incidental  damages  arising  from  the  con- 
version of  his  property.  The  doctrine  that  the  courts  of  this 
state  have  no  jurisdiction  of  actions  for  trespasses  upon  lands 
situated  in  other  states  is  too  well  settld  to  admit  of  discussion 
or  dispute.  Telegraph  Co.  v.  Middleton,  80  N.  Y.,  408 ;  Cragin  v. 
Lovell,  88  N.  Y.,  258.  The  claim  urged  by  the  plaintiff  that  if 
not  permitted  to  maintain  this  action  he  is  without  remedy  for  a 
most  serious  injury,  is  quite  groundless,  and  affords  no  reason 
for  the  assumption  of  a  jurisdiction  by  this  court  which  it  does 
not  possess.  The  plaintiff  would  seem  to  have  the  same  remedy 
for  the  trespasses  alleged  that  all  other  parties  have  for  similar 
injuries.  His  lands  cannot  be  intruded  upon  without  the  pres- 
ence in  the  state  of  the  wrong-doer,  and  no  reason  is  suggested 
why  he  could  not  seek  his  remedy  against  the  actual  wrong-doer 
in  the  courts  having  jurisdiction.  His  remedy  is  ample,  and  it 
is  no  excuse  for  assuming  a  jurisdiction  which  we  do  not  have, 
that  the  plaintiff  desires  a  remedy  against  a  particular  person 
rather  than  one  against  the  real  perpetrators  of  the  injury  who 
were  exposed  to  prosecution  in  the  place  where  the  wrong  was 
committed.     *     *     * 

The  general  term,  we  think,  also  erred  in  sustaining  the  de- 
murrer to  the  third  count  upon  the  ground  that  there  was  an  im- 
proper joinder  of  causes  of  action.  It  is  quite  true  that  under 
section  484  of  the  Code  of  Civil  Procedure,  causes  of  action  for 
slander  cannot  properly  be  joined  with  actions  for  injuries  to 
real  property;  but  this  was  not  the  ground  of  objection  stated  in 
the  demurrer.  The  ground  there  specified  was  that  a  cause  of 
action  of  a  transitory  nature,  of  which  the  court  had  jurisdiction, 


524  DEMURRERS.  [ClIAP.  VI. 

had  been  united  with  one  for  trespass  upon  land  in  another 
^tate,  of  which  the  court  had  no  jurisdiction.  This  is  not  one  of 
the  grounds  of  demurrer  authorized  by  the  Code.  It  is  a  proper 
ground  of  demurrer  that  the  court  has  not  jurisdiction  of  any 
specified  cause  of  action ;  but  this  does  not  authorize  a  demurrer 
ipon  the  ground  that  such  causes  of  action  are  united  with  one 
of  which  it  has  jurisdiction.  The  first  and  second  counts  of  the 
complaint  must  be  held  bad  upon  the  ground  that  the  court  had 
not  jurisdiction  of  the  subject  of  the  action,  but  no  sufficient' 
ground  of  demurrer  has  been  presented  to  the  third  count,  and 
it  must,  therefore,  be  held  good.  The  Code  requires  the  grounds 
of  demurrer  to  be  specifically  stated,  and  when  that  is  not  done 
it  may  safely  be  disregarded.    Code  Civil  Proc,  §  490. 

Judgment  reversed  in  part. 


FULTON  FIRE  INS.  CO.  v.  BALDWIN. 

37  N.  r.,  648.     [1868.] 

Mason,  J. :  *  *  *  The  action  is,  in  short,  to  recover  for  a 
loss  of  property,  sustained  by  the  plaintiffs'  assignor  in  conse- 
quence of  the  defendant's  negligence  in  suffering  the  sunken 
canal-boat  to  impede  the  navigation  of  the  canal  and  endanger 
the  property  of  those  navigating  the  canal. 

The  only  remaining  question  in  the  case  is  whether  the  defend- 
ant, under  this  demurrer,  specifying  only  ground  of  objection  to 
the  complaint,  and  which  is,  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  can  insist  on  the 
objection  that  the  plaintiffs  are  not  incorporated  and  have  not 
capacity  to  sue. 

There  are  six  grounds  of  demurrer  to  the  complaint  allowed 
by  the  Code.  The  first  is,  "that  the  court  has  not  jurisdiction  of 
the  person  of  the  defendant  or  the  subject  of  the  action."  The 
second  is,  "that  the  plaintiff  has  not  legal  capacity  to  sue;"  and 
the  sixth  is,  "that  the  complaint  does  not  state  facts  sufficie^it  to 
constitute  a  cause  of  action."  (Code,  §144.)  The  145  section 
declares  that  the  demurrer  shall  distinctly  specify  the  grounds  of 
objection  to  the  complaint,  and  that  unless  it  does  it  may  be 
disregarded. 


Sec.  2.]  fulton  fire  ins.  co.  v.  Baldwin.  82o 

And  section  147  provides  that  ^vhenever  any  of  the  matters 
enumerated  in  section  144  do  not  appear  on  the  face  of  the  com- 
plaint, the  objection  may  be  taken  by  answer.  And  then  comes 
in  section  148,  which  declares  that,  if  no  such  objection  be  taken, 
either  by  demurrer  or  answer,  the  defendant  shall  be  deemed 
to  have  waived  the  same,  excepting  only  the  objection  to  the  juris- 
diction of  the  court ;  and  the  objection  that  the  complaint  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  The 
complaint  in  this  case  states  a  good  cause  of  action  in  favor  of 
John  Van  Buren,  Jr.,  against  the  defendant,  and  a  valid  assign- 
ment and  transfer  of  that  cause  of  action  to  the  plaintiff;  and 
the  omission  in  the  complaint  to  allege  that  the  plaintiffs  are  in- 
corporated and  have  capacity  to  sue  cannot  be  taken  advantage 
of  by  the  defendant  on  this  demurrer  because  of  his  omission 
to  specify  this  ground  of  objection  to  the  complaint. 

There  is  no  force  or  meaning  to  language  or  this  omission  to 
specify  this  ground  of  objection  to  the  complaint,  operates  as  a 
waiver  to  the  objection.     The  144th  section  recognizes  six  dis- 
tinct grounds  of  demurrer  to  the  complaint,  and  the  145th  section 
declares  that  the  demurrer  shall  distinctly  specify  the  grounds  of 
objection  to  the  complaint,  and  the  148th  section  declares  that,  if 
no  such  objection  be  taken,  the  defendant  shall  be  deemed  to 
have  waived  the  same,  except  the  objection  to  jurisdiction,  and 
that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.     The  complaint  states  a  good  cause  of  action, 
and  that  the  plaintiffs  have  become  the  owners  of  it,  by  a  valid 
transfer  thereof  to  them,  but  does  omit  to  allege  that  the  plain- 
tiffs are  a  corporation  having  capacity  to  sue.     This  objection 
must,  therefore,  be  regarded  as  waived.    It  is  just  and  reasonable 
that  the  rule  should  be  so.    If  this  objection  to  the  complaint  is 
well  taken,  and  the  defendant  had  specified  this  ground  of  de- 
murrer, the  plaintiff  would  most  probably  have  amended  his  com- 
plaint and  inserted  proper  averments  to  show  them  a  corporation 
having  authority  to  sue.     It  is  a  question,  to  say  the  least, 
whether  such  an  allegation  in  the  complaint  is  necessary,  and  the 
statute  relieves  the  plaintiff  from  proving  it,  unless  the  defend- 
ant sets  it  up  in  his  answer.     (2  K.  S.,  458,  §  3.)     The  judgment 
of  the  Supreme  Court  must  be  reversed  and  judgment  given  for 
the  plaintiff  on  the  demurrer,  with  leave  to  the  defendant  to  an- 
swer on  the  payment  of  the  costs  of  the  demurrer  in  this  court 
and  in  the  Supreme  Court. 


826  DEMURRERS.  [ChAP.  VI. 

NORTHRUP  V.  WILLS. 
65  Kan.,  769.     [1902.] 

DosTER,  C.  J. :  This  was  an  action  in  debt  to  recover  the 
amount  of  a  lumber  bill.  The  plaintiff  alleged  in  his  petition  as 
follows :  ' '  That  it  is,  and  was  at  all  the  times  hereinafter  stated, 
a  corporation  duly  chartered,  organized,  and  existing  under  and 
by  virtue  of  the  laws  of  the  State  of  Texas."  The  defendants 
demurred  to  the  petition  for  the  reason  that  it  showed  on  its  face 
a  lack  of  legal  capacity  to  sue.  The  demurrer  was  overruled,  a 
trial  had,  and  judgment  rendered  for  plaintiff.  Proper  objec- 
tions to  the  sufficiency  of  plaintiff's  evidence  were  made  and 
overruled.     The  defendants  have  prosecuted  error  to  this  court. 

The  ground  of  the  demurrer  to  the  petition  was  that  the  plead- 
ing showed  the  plaintiff  to  be  a  foreign  corporation,  but  failed 
to  show  that  it  had  complied  with  the  requirements  of  chapter  10 
of  the  laws  of  the  Special  Sessions  of  1898,  the  last  provision  of 
section  12  of  which  act  reads  as  follows:  ''No  action  shall  be 
maintained  or  recovery  had  in  any  of  the  courts  of  this  state  by 
any  corporation  doing  business  in  this  state,  without  first  obtain- 
ing the  certificate  of  the  Secretary  of  State  that  the  statements 
provided  for  in  this  section  have  been  properly  made."  The 
above  mentioned  act  of  the  special  sessions  of  1898  has  been  held 
to  apply  to  foreign  as  well  as  domestic  corporations.  State  v. 
American  Book  Co.  (Kan.),  69  Pac,  563.  The  demurrer  was 
not  well  taken.  The  petition  did  not  show  on  its  face  that  the 
plaintiff  lacked  legal  capacity  to  sue.  It  did  not  show  anything 
on  the  subject;  and,  as  against  a  demurrer,  it  did  not  need  to 
make  such  showing,  because  demurrers  to  petitions  will  only  lie 
when  the  defect  affirmatively  appears  on  the  face  of  such  plead- 
ing. ''But  this  point  cannot  be  raised  by  a  demurrer  upon  the 
ground  that  the  complaint  shows  on  its  face  that  the  plaintiff 
has  no  capa,eity  to  sue,  for  the  complaint  does  not  show  anything 
of  the  kind.  The  most  that  can  be  said  is  that  the  complaint 
fails  to  show  that  the  plaintiff  has  been  invested  with  power  to 
sue,  but  such  omission  affords  no  ground  for  demurrer,  as  it  is 
based  upon  a  defect  (if  defect  it  be)  in  the  complaint,  and  not 
upon  what  it  shows  upon  its  face.  The  Code,  in  section  165,  al- 
lows a  demurrer  only  when  it  appears  upon  the  face  of  the  com- 


Sec.  2.]  northrup  v.  wills,  827 

plaint  that  the  plaintiff  has  not  legal  capacity  to  sue;  and,  as 
that  does  not  appear  upon  the  face  of  the  complaint  in  this  case, 
it  is  clear  that  the  demurrer  cannot  be  sustained  on  the  first 
ground,  as  the  Code  does  not  provide  for  a  demurrer  on  the 
ground  of  any  omission  in  the  complaint,  except  an  omission  to 
state  facts  sufficient  to  constitute  a  cause  of  action."  Commis- 
sion Co.  V.  Poole,  41  S.  C,  70. 

Judgment  affirmed* 


PENCE  V.  AUGHE. 

101  Ind.,  317.   [1884.] 

.  HowK,  J. :  The  first  error  assigned  by  the  appellant,  Carrie 
Pence,  upon  the  record  of  this  cause,  is  the  overruling  of  her 
demurrer  to  appellee's  complaint. 

In  his  complaint,  the  appellee,  as  guardian  of  Aaron  W. 
Pence,  a  person  of  unsound  mind,  alleged  that  theretofore,  at 
the  ....  term  of  the  court  below,  he  was  duly  appointed  the 
guardian  of  Aaron  W.  Pence,  who  was  then  and  there  adjudged 
by  the  court  to  be  of  unsound  mind ;  that  appellee  qualified  and 
entered  upon  the  discharge  of  his  duties  as  such  guardian ;  that 
Aaron  "W.  Pence  was  of  unsound  mind  and  was  extremely  weak, 
physically  and  mentally,  to  such  an  extent  as  to  render  him 
wholly  unfit  to  care  for  himself,  or  to  comprehend  and  under- 
stand the  effect  and  purport  of  any  contract  he  might  enter  into 
or  be  induced  to  make;  that  the  defendant,  Carrie  Spriggs,  was 
a  woman  about  forty  or  forty-five  years  of  age ;  that,  on  July  30, 
1883,  Carrie  Spriggs  represented  to  the  clerk  of  Tippecanoe 
Circuit  Court  that  she  was  a  bona  fide  resident  of  Tippecanoe 
county,  and  procured  from  such  clerk  a  marriage  licence,  author- 
izing her  marriage  to  and  with  Aaron  W.  Pence ;  that  on  Sunday, 
September  9th,  1883,  Carrie  Spriggs  and  Aaron  W.  Pence  pro- 
cured a  carriage  and  went  to  the  place  about  two  miles  in  the 
country,  away  from  the  influence  and  control  of  the  guardian 
and  relations  of  Aaron  W.  Pence,  and  under  the  pretended  au- 
thority of  such  marriage  license,  and  by  the  services  and  cere- 
monies performed  by  a  minister  of  the  gospel,  a  pretended  mar- 
riage ceremony  was  performed,  having  for  its  primary  object 

*See,  also,  Parlin  &  Orendorff  Co.  v.  Boatman,  84  Mo.  App.  67. 


828  DEMURRERS.  [ChAP.  VI. 

and  purpose  the  union  of  Aaron  W.  Pence  and  Carrie  Spriggs  in 
the  holy  bonds  of  matrimony ;  that  Carrie  Spriggs  had  ever  since 
claimed  to  be  the  wife  of  Aaron  W,  Pence,  and  claimed  an  inter- 
est in  his  property  and  her  support  from  the  same,  as  if  she  were 
his  lawful  wife,  and  had  assumed  the  name  of  Carrie  Pence,  by 
which  name  the  appellee  asked  that  she  be  notified  of  this  pro- 
ceeding, as  well  as  by  her  lawful  name  of  Carrie  Spriggs,  the  two 
names  representing  one  and  the  same  person;  that  Aaron  W. 
Pence  was  made  a  defendant,  that  he  might  be  notified  of  the 
proceeding  and  answer  thereto,  if  he  had  any  other  interest 
therein  than  that  represented  by  his  guardian,  the  appellee ;  that 
Carrie  Spriggs,  well  knowing  the  feebleness  and  weakness  of 
Aaron  W.  Pence's  mind,  influenced  and  persuaded  him  to  enter 
into  such  pretended  marriage  relation  with  her,  without  the 
knowledge  or  consent  of  his  guardian.    "Wherefore,  etc. 

To  this  complaint,  the  appellant,  Carrie  Pence,  demurred 
upon  the  following  grounds :  1.  That  it  did  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action ;  and,  2.  That  the  appellee 
had  not  the  legal  capacity  to  sue. 

It  is -clear,  we  think,  that  the  second  cause  of  demurrer  does 
not  present  for  decision  the  question  which  appellant's  counsel 
manifestly  sought  to  present  thereby,  namely:  Whether  or  not 
the  appellee,  as  the  guardian  of  a  husband  of  unsound  mind, 
may.  maintain  an  action  in  his  own  name  to  obtain  a  decree  an- 
nulling and  setting  aside  the  marriage  of  such  husband  ?  It  has 
often  been  decided  by  this  court  that  a  demurrer  to  a  complaint 
assigning  as  cause,  "that  the  plaintiff  has  not  legal  capacity  to 
sue,"  has  reference  only  to  some  legal  disability  of  the  plaintiff,, 
such  as  infancy,  idiocy  or  coverture,  and  not  to  the  fact  that  the 
complaint  fails  to  show  a  right  of  action  in  the  plaintiff.  Dale  v. 
Thomas,  67  Ind.,  570;  Dewey  v.  State  ex  rel.,  91  Ind.,  173;  Tray- 
lor  v.  Dykins,  91  Ind.,  229.  It  was  not  shown  by  the  complaint, 
in  this  case,  that  the  appellee,  Aughe,  was  incapacitated  to  sue, 
by  reason  of  any  legal  disability. 

The  finst  cause  of  demurrer  assigned  by  the  appellant,  how- 
ever, presents  not  only  the  question  of  the  sufficiency  of  the  facts 
stated  to  constitute  a  cause  of  action,  but  a  cause  or  right  of 
action  in  the  plaintiff.  If  the  facts  stated  were  sufficient  to 
show  that  the  marriage  might  be  annulled  at  the  suit  of  the 
husband,  the  question  would  still  remain  for  decision,  whether 
or  not  the  legal  guardian  of  the  husband  might  institute  and 


gEC.  2.1  PENCE  V.  AUGHE.  829 

maintain,  in  his  own  name  as  guardian,  a  suit  for  the  annul- 
ment of  such  marriage.     *     *     *  .    -,         ^  . 

Judgment  reversed. 


STATE  EX  REL.  MATNEY  v.  SPENCER. 

79  Mo.,  314.     [1883.] 

Henry,  J. :    This  action  was  commenced  in  Buchanan  Circuit  . 
Court  against  Spencer  and  his  co-defendants,  sureties,  on  his 
official  bond  as  sherifp  of  said  county.     *     *     * 

To  this  petition  defendants  filed  a  general  demurrer,  on  the 
ground  that  it  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action  against  defendants.    The  court  sustained  the  demurrer 
and  rendered  judgment  for  defendants,  from  which  this  appeal- 
is  prosecuted.     *     *     * 

It  appears  from  the  petition  that  the  sale  under  the  first  exe- 
cution was  made  October  31st,  1877,  and  this  suit  was  not  com- 
menced until  December  16th,  1880,  more  than  three  years  after 
the  sale.  The  sheriff's  duty  was  to  sell  for  cash,  and  it  was  his 
right  and  duty  to  demand  of  the  bidders  the  amounts  bid  by 
thm,  respectively,  on  that  day.  And,  therefore,  the  statute  com- 
menced running  on  the  day  of  the  sale.  That  three,  and  not  ten 
years  is  the  limitation.  State  ex  rel.  v.  Minor,  44  Mo.,  374 ;  Kirk 
V.  Sportsman,  48  Mo.,  383;  Lesem  v.  Neal,  53  Mo.,  419. 

When  the  statute  creates  an  absolute  bar  by  the  mere  lapse  of 
time,  without  any  exception,  the  defense  may  be  made  by  de- 
murrer if  the  necessary  facts  appear  upon  the  pleading.  State 
to  use,  etc.,  v.  Bird,  22  Mo.,  473. 

Our  statute  of  limitations  is  a  bar,  if  the  defendant  will  avail 
himself  of  it,  but  if  he  answ^er  without  pleading  it,  although  it 
appears  upon  the  face  of  the  petition  that  the  time  prescribed  by 
the  statute  elapsed  before  the  suit  was  commenced,  the  court 
will  take  no  notice  of  it,  and  plaintift'  will  recover  if  the  defend- 
ant fail  to  make  out  the  pleaded  defense.  The  statute  provides 
that  "the  demurrer  shall  distinctly  specify  the  ground  of  ob- 
jection to  the  pleading;  unless  it  does  so  it  may  be  disregarded." 
In  Almutt  v.  Leper,  48  Mo.,  320,  Bliss  J.,  said :  ' '  The  statute  is 
imperative,  that  the  demurrer  shall  specify  the  ground  of  objec- 


830  DEMURRERS.  [ChaP.  VI. 

tion  to  the  pleading,  and  when  so  specified  the  court  will  not  take 
notice  of  other  objections."  In  McClurg  v.  Phillips,  49  Mo., 
316,  the  demurrer,  as  in  the  case  at  bar,  was  general,  that  the 
petition  did  not  state  a  cause  of  action.  It  was  claimed  that  it 
was  properly  sustained,  because  of  an  improper  joinder  of  causes 
of  action,  but  the  court  said  (Bliss,  J.)  :  "This  reason  was  not 
named  in  the  demurrer,  and  therefore  should  not  have  been  con- 
sidered, even  if  the  objection  was  a  good  one.  'The  demurrer 
shall,'  etc.  (quoting  the  statute).  'May,'  in  this  connection, 
means  *  should, '  and  we  will  only  look  to  the  objections  specified. ' ' 
See  also  Cheely  v.  Wells,  33  Mo.,  106. 

Judge  Bliss,  in  his  valuable  work  on  Code  Pleading,  seems  to 
approve  the  ruling  of  the  Supreme  Court  of  California,  on  a 
similar  statute,  announced  in  Kent  v.  Snyder,  30  Cal.,  672,  as 
follows:  "Whenever  the  defense  is  of  the  nature  of  a  special 
privilege,  of  which  the  party  can  only  avail  himself  by  pleading 
it,  then  his  pleading,  whether  by  demurrer  or  answer,  must 
specify  the  ground  of  his  defence."  Our  conclusion  is,  that 
while  a  defendant  may  demur  to  a  petition,  either  at  law  or  in 
equity,  which  shows  upon  its  face  that  the  cause  of  action  is 
barred  by  the  statute  of  limitations,  in  a  suit  at  law,  whatever 
may  be  the  rule  in  equity,  it  must  be  a  special  and  not  a  gen- 
eral demurrer,  as  distinctly  held  in  33,.  48,  and  49  Mo.,  supra. 

The  judgment  is  reversed  and  the  cause  remanded.  All  con- 
cur. 


TRUSTEES  V.  KILBOURNE. 
74  Wis.  452.     [1889.] 

Action  by  the  trustees  of  Kilbourne  Lodge,  No.  3,  of  Ancient, 
Free,  and  Accepted  Masons,  against  Byron  Kilbourne  et  al. 
Judgment  was  rendered  for  Kilbourne  and  Thorndike  and  plain- 
tiffs appeal. 

Taylor,  J. :  The  appellants  commenced  an  action  against  the 
respondents  and  the  said  Hoyt  and  Kniffen,  in  the  Superior 
Court  of  Milwaukee  county,  and  in  such  action  filed  a  complaint 
against  all  the  respondents,  demanding  equitable  relief  against 
all  of  them.    To  this  complaint  Frank  M.  Hoyt  answered.    Knif- 


Sec.  2.]  trustees  v.  kilbourne.  831 

fen  does  not  appear  to  have  answered  or  demurred.  The  other 
defendants,  the  Kilbournes,  Thorndike,  McCallum,  and  Vizay, 
demurred  to  the  complaint,  alleging  as  grounds  of  demurrer  that 
the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action  as  to  them.  Upon  the  hearing  of  this  demurrer,  the 
court  below  sustained  the  demurrer,  and  from  the  order  sustain- 
ing such  demurrer,  plaintiff  appeals  to  this  court. 

The  ground  upon  which  the  demurrer  was  sustained  is  that, 
upon  all  the  facts  stated  in  the  complaint,  the  plaintiff'  is  not  en- 
titled to  any  equitable  relief  against  them.  Under  the  decisions 
of  this  court  the  demurrer  was  properly  sustained,  although  the 
facts  stated  may  be  sufficient  to  constitute  a  cause  of  action  at 
law  against  them.  This  court  has  frequently  decided  that  a  de- 
murrer to  a  complaint,  which  is  clearly  intended  by  the  pleader 
as  a  complaint  in  equity,  because  it  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  will  be  sustained  if  the  facts  do 
not  constitute  a  cause  of  action  in  equity,  and  such  demurrer 
will  not  be  overruled  on  the  ground  that  such  complaint  states 
a  cause  of  action  at  law.  Supervisors  v.  Decker,  30  Wis.  624; 
Tewksbury  v.  Sehulenberg,  41  "Wis.  584;  Denner  v.  R.  R.  Co., 
57  Wis.  218, 15  N.  W.  158 ;  Pierce  v.  Carey,  37  Wis.  234;  Gormely 
V.  Association,  55  Wis.  350,  13  N.  W.  342.  The  effect  of  these 
decisions  is  that,  upon  such  a  demurrer,  the  defendant  may  avail 
himself  of  the  objection  to  the  complaint  that,  upon  the  facts 
stated,  the  plaintiff  has  an  adequate  remedy  at  law,  and  for  that 
reason  his  complaint  is  bad  as  a  complaint  in  equity.  Upon  the 
hearing  of  the  appeal  in  this  case,  the  learned  counsel  for  the 
appellants  argued  at  length,  and  with  great  ability,  the  question 
whether  the  plaintiff  had  shown  by  its  complaint  that  it  had  title 
to  the  real  estate  in  question.  This  question,  however,  the  learned 
attorney  for  the  respondents  declined  to  argue,  and  relied  solely 
on  the  ground  taken  by  them  in  the  court  below,  viz.,  that  upon 
the  facts  stated  in  the  complaint  it  clearly  appears  that  the  plain- 
tiffs have  an  adequate  remedy  at  law.  This  is,  therefore,  the 
only  question  we  are  at  liberty  to  determine  upon  this  appeal. 

After  a  careful  reading  of  the  complaint,  which  sets  forth  at 
length  the  alleged  title  of  the  plaintiff,  and  which,  for  the  pur- 
pose of  this  decision,  may  be  admitted  to  show  a  good  title  in 
the  plaintiff,  and  a  right  to  the  possession  of  the  real  estate 
in  question,  we  are  constrained  to  agree  with  the  court  below 
that  the  plaintiff  has  an  adequate  remedy  at  law.     The  allega- 


832  DEMURRERS.  [ChaP.  VI. 

tions  of  the  complaint  upon  the  theory  that  the  plaintiff  acquired 
title  to  the  real  estate  in  question  at  the  time  stated  in  said 
complaint  show  that  immediately  after  that  date,  and  before  the 
plaintiff  had  taken  any  actual  possession  of  "such  real  estate, 
the  defendants  the  Kilbourns  claimed  the  title  and  the  right  of 
possession  adversely  to  the  plaintiff,  and  by  their  tenant  took 
the  actual  possession  of  the  premises,  and  held  such  possession, 
in  hostility  to  the  claim  of  the  plaintiff  at  the  time  of  the  com- 
mencement of  this  action.  This  state  of  facts  shows  clearly  that 
an  action  of  ejectment  would  be  an  adequate  remedy  for  the 
plaintiff.  In  such  action  the  title  of  the  plaintiff  would  be 
adjudicated  as  well  as  the  right  of  possession  of  the  defendants. 
If,  in  such  action,  it  should  be  held  that  the  plaintiff  had  no  title, 
that  would  end  the  controversy;  on  the  other  hand  if  the  plain- 
tiff's title  should  be  established,  that  would  end  the  controversy, 
because  in  such  action  the  plaintiff'  would  recover  of  the  tenants 
and  their  landlords,  the  Kilbourns,  rent  for  the  use  of  the  prem- 
ises as  well  as  damages,  if  any  injury  or  waste  to  the  premises 
had  been  committed  by  the  defendants.  There  seems  to  us  an 
entire  absence  of  any  sufficient  reason  for  invoking  the  aid  of  a 
court  of  equity  to  settle  the  rights  of  the  parties  to  this  action. 
It  seems  very  clear  to  us  that  a  court  of  equity  would  have  no 
power  to  compel  the  tenants  of  the  Kilbourns  to  attorn  to  and 
become  the  tenants  of  the  plaintiff,  against  their  consent.  In  a 
contest  between  the  plaintiff  and  the  tenants  the  court  can  only 
determine  whether  the  tenants  or  the  plaintiff  has  the  title  or 
the  right  to  the  possession,  but  it  cannot  force  the  tenants  of  the 
claimant,  Kilbourn,  to  become  the  tenants  of  the  plaintiff.  The 
complaint  charges  no  fraud  on  the  part  of  the  Kilbournes  or  on 
the  part  of  their  tenants.  It  simply  charges  that  the  Kilbournes 
have  no  title  to  the  premises,  or  to  the  rents  arising  out  of  the 
same,  except  what  is  secured  to  them  by  the  lease  which  it  sets 
up  as  its  title.  The  other  allegations  of  the  complaint  show  that 
the  Kilbournes  deny  this  alleged  fact,  and  claim  to  have  an 
interest  in  the  premises  hostile  to  the  title  of  the  plaintiff.  They 
assert  a  legal  title  hostile  to  the  plaintiff's  title,  and,  being  in  the 
actual  possession,  the  proper  way  to  determine  the  rights  of  the 
parties  is  by  an  action  of  ejectment.  The  fact  that  the  complaint 
shows  a  cause  of  action  in  equity  against  the  defendant  Hoyt 
does  not  help  the  plaintiff  as  against  the  demurring  defendants. 


Sec.  2. 


TRUSTEES   V.   KILBOURNE.  833 


Hoyt  does  not  question  the  sufficiency  of  the  complaint,  and  has 
answered  the  same. 

The  order  of  the  superior  court  is  affirmed,  and  the  cause  is 
remanded  to  the  superior  court  of  Milwaukee  County  for  further 

proceedings  according  to  law. 

Judgment  affirmed. 


EASLEY  V.  PREWITT. 
37  Mo.  361.     [1866.] 

The  petition  set  forth  a  contract  made  with  plaintiff  by  de- 
fendants for  the  building  of  a  church,  alleged  the  performance 
of  the  contract,  the  acceptance  of  the  work,  and  the  amount  due 
thereon;  and  then  alleged,  that  more  than  three  months  before 
the  commencement  of  this  action,  he  gave  said  defendants  notice 
in  writing  that  he  would  proceed  to  enforce  his  lien,  by  the  sale 
of  said  church  property,  as  is  provided  in  said  contract  hereto- 
fore mentioned,  for  the  purpose  of  paying  the  balance  due  and 
owing  him  for  the  building  of  said  church.  Wherefore  plaintiff 
asks  judgment  against  the  said  defendants,  trustees  of  said 
church,  for  the  sum  of  nine  hundred  and  twenty  dollars,  and  the 
interest  due  thereon,  and  an  order  for  the  sale  of  said  lots,  and 
the  said  building  thereon,  for  the  purpose  of  satisfying  said 
judgment,  and  for  other  proper  relief.  A  demurrer  to  the  peti- 
tion was  sustained. 

Wagner,  Judge,  delivered  the  opinion  of  the  court. 

The  demurrer  in  this  case  was  improperly  sustained.  A  peti- 
tion is  not  demurrable  because  it  asks  a  judgment  not  war- 
ranted by  the  averments ;  nor  is  its  character  always  determined 
by  the  relief  it  prays  for.  The  court  may  grant  any  relief  con- 
sistent with  the  case  made  and  embraced  within  the  issues.  (R. 
C.  1855,  p.  1280,  §  12;  Northcraft  v.  Martin,  28  Mo.  469).  The 
petition  stated  a  good  cause  of  action  on  the  agreement;  but  if 
the  plaintiff  wishes  to  foreclose  his  lien  on  the  building,  he 
ought  to  amend  his  petition,  and  set  out  the  condition  and  the 
breach. 

The  judgment  will  be  reversed  and  the  cause  remanded.  Judge 
Holmes  concurs;  Judge  Lovelace  absent. 

53 

// 


g34  *  DEMURRERS.  [ChAP.  VI. 

TENNANT  v.  PFISTER. 

51  Cal.  511.     [1876.] 

The  plaintiffs  and  others,  and  W.  B.  Rogers,  Philip  Roach, 
John  Heinlen,  Harvey  Swicard,  and  Charles  H.  IMitehell,  were 
owners  of  the  rancho  Santa  Teresa  in  the  county  of  Santa  Clara, 
and,  on  the  25th  day  of  August,  1876,  commenced  an  action  for 
the  partition  of  the  rancho.  By  the  final  decree,  the  rancho 
was  divided  into  subdivisions  numbered  from  one  to  fifty-nine, 
and  there  was  allotted  to  plaintiff  Tennant,  lots  52,  9,  34,  and 
50;  to  plaintiff  McLellan,  lot  47;  to  plaintiff  Cottle,  lots  29,  and 
42;  to  Wm.  A.  Senter,  lots  17,  4,  25;  and  to  the  deceased,  Wm. 
Center,  lot  16.  The  said  Rogers,  Roach  Heinlen,  Swicard  and 
Mitchell  appealed  from  the  decree  and  gave  an  undertaking, 
among  other  things,  to  pay  the  value  of  the  use  and  occupation 
of  the  land  allotted  to  others  and  which  they  occupied,  if  the 
decree  was  finally  confirmed.  The  decree  also  awarded  to  each 
person  possession  of  the  land  allotted  to  him.  By  the  under- 
taking, proceedings  on  the  decree  were  stayed.  The  undertaking 
was  filed  October  14,  1868.  The  Supreme  Court  affirmed  the 
judgment,  and  the  remittitur  was  sent  down  on  the  21st  day  of 
February,  1870.  (See  38  Cal.  637.)  The  appellants,  pending 
the  appeal,  were  in  possession  of  portions  of  the  tracts  allotted  to 
the  plaintiffs,  as  follows: 

John  Heinlen  continued  to  occupy  and  possess  exclusively 
fifteen  acres  of  lot  29,  one  acre  of  lot  30,  one  hundred  and  sixty 
acres  of  lot  number  16,  and  one  hundred  and  sixty  acres  of  lot 
number  9.  Wayne  B.  Rogers  continued  to  occupy  and  possess 
exclusively  thirteen  acres  of  said  lot  42,  and  one  acre  of  lot 
number  16.  Harvey  Swicard  continued  to  occupy  and  possess 
exclusively  twelve  acres  of  lot  29,  and  thirty-three  acres  of  lot 
38.  Charles  H.  Mitchell  continued  to  occupy  and  possess  ex- 
clusively eighty  acres  of  lot  47,  and  three  acres  of  lot  38,  and 
eighty-eight  acres  of  lot  50.  Philip  Roach  continued  to  occupy 
and  possess  exclusively  sixteen  acres  of  lot  9. 

The  defendants  were  sureties  on  the  undertaking,  and  this 
action  was  brought  on  the  same  to  recover  the  value  of  the  use 
and  occupation  of  the  several  parcels  of  land  thus  occupied  by 
the  defendants.  The  defendants  appealed.  (For  the  decision 
of  this  case  on  the  former  appeal,  see  45  Cal.  270.) 


Sec.  2.]  texxa:\t  v.  pfister.  835 

The  other  facts  are  stated  in  the  opinion. 
By  the  Court : 

1.  If  upon  the  face  of  a  complaint  there  appear  to  be  a  mis- 
joinder of  parties  plaintiff,  the  objection  must  be  taken  by 
special  demurrer,  and  if  not  so  taken,  it  is  waived.  Under  a 
general  demurrer,  upon  the  ground  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action,  a  question 
of  misjoinder  of  parties  plaintiff  cannot  be  raised.*  (Gillam  v. 
Sigman,  28  Cal.  637.)  Upon  the  former  appeal  in  this  case  it 
appeared  that  a  demurrer  to  the  complaint  on  the  ground  that 
there  was  a  misjoinder  of  parties  plaintiff  therein  had  been 
overruled,  and  that  the  defendant  had  thereupon  pleaded  the 
general  issue,  and  set  up  certain  new  matter  in  bar  of  the  action. 
At  the  trial,  which  led  to  that  appeal,  the  court,  upon  motion  of 
the  defendant,  excluded  all  the  evidence  of  the  plaintiffs  on  the 
ground  that  there  was  a  misjoinder  of  parties  plaintiff  on  the 
face  the  complaint.  This,  we  said,  was  not  proper  practice, 
and  that  the  demurrer  on  that  ground  having  been  overruled, 
the  case  should  have  been  disposed  of,  as  though  no  such  demur- 
rer had  been  interposed,  unless  the  court  should  first  set  aside 
its  order  overruling  the  demurrer,  and  permit  it  to  be  again 
presented  for  consideration.  This  was  the  entire  scope  of  the 
decision  then  made  here,  and  the  counsel  for  the  respondent  is 
therefore  mistaken  in  supposing  that  upon  the  former  appeal  we 
determined,  either  actually  or  by  implication,  the  sufficiency  of 
the  complaint  in  any  respect.  The  determination  here  upon  that 
appeal,  concerned  only  the  question  of  practice  in  the  respect 
referred  to.     (Tennant  v.  Pfister,  45  Cal.  270.) 

2.  Upon  the  return  of  the  cause  to  the  court  below,  the  action 
was  again  tried,  and  judgment  rendered  for  the  plaintiff.  The 
present  appeal  is  taken  from  the  judgment,  and  the  principal 
point  relied  upon  is  that  the  court  improperly  overruled  the  de- 
murrer to  the  complaint  for  misjoinder  of  parties  plaintiff.  The 
demurrer  should  have  been  sustained.  The  plaintiffs  seek  a 
joint  recovery  of  moneys,  in  which  they  have  no  joint  interest. 
The  plaintiff  Tennant,  for  instance,  has  no  interest  in  a  recovery 
for  the  use  and  occupation  of  lot  47,  detained  not  from  him, 
but  only  from  his  co-plaintiff',  McLellan ;  nor  has  the  plaintiff 
Cottle  any  interest  in  a  recovery  for  the  use  and  occupation  of 


♦Contra  in  Indiana,  Mcintosh  v.  Zaring,  ante,  p.  242. 


836  DEMURRERS.  [ChAP.  VI. 

lot  .52,  detained  from  plaintiff  Tennant.   The  case  of  Fowler  v. 
Frisbie,  (37  Cal.  34),  is  decisive  of  this  case. 

Judgment  reversed  and  cause  remanded,  with  directions  to 
sustain  the  demurrer  to  the  complaint.* 


MORAN  V.  CARROLL. 

35  la.  22.     [1872.] 

Miller,  J.  1.  The  objection  made  by  the  demurrer  of  Car- 
roll is,  that  the  plaintiffs  join  in  the  action,  while  their  interests 
are  several  and  not  joint.  This  is  not  a  defect  of  parties,  but,  if 
an  objection  at  all,  it  is  a  misjoinder  of  parties,  which  consists 
in  joining  as  plaintiffs  persons  who  have  not  a  joint  interest  in 
the  subject  of  the  action.  A  defect  of  parties  occurs  where 
there  is  an  omission  of  some  one  of  the  persons  who  ought  to 
have  been  made  a  plaintiff  or  defendant  along  with  others.  At 
common  law  this  was  called  a  nonjoinder.  Where  one  who 
should  have  been  joined,  either  as  plaintiff  or  defendant,  is 
ommitted,  a  defect  of  parties  occurs.  But  not  so  where  persons 
are  joined  who  ought  not  to  be.    This  is  a  misjoinder. 

A  petition  may  be  assailed,  by  demurrer,  for  a  defect  of  par- 
ties, but  not  for  a  misjoinder.!  Beckwith  v.  Dargets,  18  la.  303, 
and  cases  cited  in  opinion  of  Wright,  J.  Section  2876  of  the  Re- 
vision of  1860  specifies  ''defect  of  parties,"  as  a  ground  of  de- 
murrer, but  omits  misjoinder.  While  at  common  law  a  mis- 
joinder, as  well  as  nonjoinder,  of  parties  could  be  objected  to 
by  demurrer,  it  cannot,  under  our  system,  which  does  not  permit 
a  demurrer  for  any  cause  that  does  not  come  under  some  of  th6 
specifications  provided  in  section  2876  of  the  Revision.  School 
Dist.  Tp.  of  Sioux  City  v.  Pratt,  17  la.  16;  Byers  v.  Rodabaugh^ 
id.  53,  and  cases  cited.     *    *    * 

Judgment  affirmed. 

*See,  also,  Nevil  v.  Clifford,  55  Wis.  161. 
tUnder  the  Code  of  Iowa. 


Sec.  2.]  bass  v.  comstock.  837 

BASS  T.  COMSTOCK. 

38  N.  Y.  21.     [1868.] 

Mason,  J.  The  demurrer  in  this  case  was  properly  stricken 
out  and  judgment  given  for  the  plaintiffs.  There  is  no  mis- 
joinder of  causes  of  action.  There  are  two  causes  of  action  upon 
two  promissory  notes  well  stated  in  the  complaint,  but  the 
accusation  against  the  complaint,  as  I  understand  it,  is,  that  the 
causes  of  action  are  not  separately  stated,  as  required  by  section 
167  of  the  Code.  This  section  does  declare  that  the  causes  of 
action  must  be  separately  stated,  but  the  better  opinion  seems 
to  be  that  such  causes  of  action  are  not  improperly  united,  sim- 
ply because  they  are  not  separately  stated  by  the  pleader.  (Dor- 
man  V.  Kellam,  14  How.  Pr.  184 ;  1  N.  Y.  Pr.  367 ;  Gooding  v. 
McAlister,  9  How.  Pr.  123 ;  Robinson  v.  Judd,  9  How.  378 ;  Peck- 
ham  V.  Smith,  9  How.  Pr.  436.)  These  cases,  and  others  which 
might  be  referred  to,  hold  that  a  demurrer  does  not  lie  to  a 
complaint  for  not  separately  stating. two  or  more  causes  of  action, 
they  being  such  as  might  be  properly  united  in  one  complaint, 
if  properly  and  separately  stated,  but  that  the  remedy  of  the 
defendant  is  by  motion.  There  are  cases  which  hold  that  a 
demurrer  for  such  a  defect  in  the  complaint  will  lie  and  is  the 
proper  remedy.  (8  How.  177;  9  id.  198;  4  id.  226,  228;  5  id. 
171;  11  id.  27.)  These  cases  hold  that  several  causes  of  action 
are  improperly  united  where  they  are  not  separately  stated,  as 
required  by  section  167  of  the  Code.  The  decided  weight  of 
authority  in  the  Supreme  Court,  however,  is  the  other  way,  and 
the  better  reason  is,  that,  when  the  causes  of  action  are  such  as 
may  be  united  in  the  complaint,  a  demurrer  will  not  lie  for  such 
a  cause. 

It  must  be  borne  in  mind  that  section  167  allows  the  causes 
of  action  upon  these  two  notes  to  be  joined  in  the  same  com- 
plaint, but  it  declares  that  they  must  be  separately  stated.  If  we 
turn  to  section  144,  it  will  be  seen  that  a  demurrer  can  only  be 
interposed  for  the  causes  stated  in  that  section,  none  of  which 
touch  this  case,  unless  it  is  the  fifth  sub.  of  that  section,  and 
which  is,  that  several  causes  of  action  have  been  improperly 
united. 

That  is  improperly  united  in  the  complaint.  This  section  144 
states,  that  the  defendant  may  demur  to  the  complaint,  when  it 


838  DEMURRERS.  [ChaP.  VI. 

shall  appear,  upon  the  face  thereof,  that  several  causes  of  action 
have  been  improperly  united.  Now,  section  167  reclares,  that 
these  causes  of  action  may  properly  be  united  in  the  same  com- 
plaint, and  the  injunction  imposed  upon  the  pleader,  that  such 
causes  of  action  shall  be  separately  stated,  is  a  rule  of  pleading:, 
and  which  has  been  violated  when  this  is  not  done,  but  I  am  not 
able  to  perceive  how  it  can  be  said  that  the  causes  of  action  have 
been  improperly  united  in  the  complaint. 

Now,  section  144  does  not  say  that  a  demurrer  may  be  inter- 
posed to  the  complaint  where  several  causes  of  action,  which  may 
be  properly  joined  under  section  167,  because  they  are  united  in 
one  count,  and  not  separately  stated.  The  demurrer  is  not  given 
for  uniting  in  count  separate  causes  of  action,  but  for  uniting  in 
the  complaint  causes  of  action,  which  it  is  not  lawful,  under 
section  167,  to  unite  in  the  same  complaint.  It  is  true,  the  plead- 
er, in  this  case,  has  violated  a  rule  of  pleading  enjoined  by  this 
same  section.  It  does  not  follow,  however,  that  this  demurrer 
can  be  maintained.  There  are  other  rules  of  pleading  prescribed 
by  the  Code,  the  violation  of  which  will  not  give  the  defendant 
his  demurrer. 

This  view  is  greatly  strengthened  by  the  last  paragraph  of 
section  172  of  the  Code,  which  makes  it  the  duty  of  the  court, 
where  a  demurrer  to  the  complaint  shall  be  sustained  because  of 
the  improper  misjoinder  of  causes  of  action,  to  order  them  to  be 
separated,  and  that  they  be  proceeded  with  as  separate  actions.* 

Judgment  affirmed. 


HILES  V.  JOHNSON. 

67  Wis.  517.      [1886.] 

Orton,  J.  These  two  cases  are  substantially  alike  in  respect 
to  the  questions  presented  on  appeal.  The  complaints  are,  first, 
in  ejectment,  with  the  usual  averments,  as  against  defendants 
claiming  title  to  the  premises,  and  it  is  averred  "that  the  de- 
fendants claim  title  to  said  lands,  and  an  interest  therein  and 
claim  to  be  the  owners  thereof,  and  the  whole  thereof;  but  this 

♦But  the  fact  that  the  different  causes  of  action  are  not  separately 
stated  will  not  deprive  a  defendant  of  his  right  to  demur  for  mis- 
joinder.   Wildes  V.  Suydam,  ante,  p.  563. 


Sec.  2.]  hiles  v.  johnson.  839 

plaintiff  insists  that  said  claims  of  the  defendants  are  unlawful, 
and  their  pretended  title  thereto  is  void,  and  ought  to  be  can- 
celled of  record."  Following  the  usual  prayer  for  judgment  in 
ejectment  is  the  following:  "And  that  said  defendants'  title 
thereto  be  adjudged  void,  and  canceled  of  record,  and  that  this 
plaintiff  have  such  further  and  other  relief  as  shall  be  just  and 
equitable."  In  the  second  case  there  is  a  claim  for  damages  for 
waste  under  section  82,  Rev.  St..  and  prayer  for  injunction 
against  waste  pendente  lite,  and  there  is  a  general  prayer  for 
relief,  but  no  special  prayer  for  the  cancellation  of  the  defend- 
ants' title.  These  complaints  were  demurred  to  on  the  ground 
that  several  causes  of  action  have  been  improperly  united  in  said 
complaints.  The  demurrers  were  overruled,  and  the  defendants 
have  appealed.  The  contention  of  the  learned  counsel  of  the 
appellants  is  that,  united  with  the  proper  averments  in  com- 
plaints in  ejectment,  are  the  proper  averments  and  prayer  to 
quiet  title,  or  to  remove  a  cloud  from  the  title  of  the  plaintiff. 

It  has  long  been  settled  by  this  court  that,  in  order  to  make 
a  complaint  multifarious,  the  count  which  is  claimed  to  be  im- 
properly joined  must  set  out  a  good  cause  of  action.  Bassett  v. 
Warner,  23  Wis.  673 ;  Truesdel  v.  Rhodes,  26  Wis.  215 ;  Willard 
v.  Reas,  Id.  540;  Lee  v.  Simpson,  29  Wis.  333.  The  case  of 
Leidersdorf  v.  Second  Ward  Bank,  50  Wis.  406,  S.  C.  7  X.  W. 
R.  306,  is  not  in  conflict  with  the  above  cases.  It  is  held  in  that 
case  only  that  if  the  complaint  stated  any  cause  of  action,  it 
stated  two  causes,  and  was  therefore  demurrable.  It  was  not 
decided  whether  the  complaint  stated  any  good  cause  of  action. 

2.  Does  either  of  these  complaints  state  any  good  cause  of 
action,  except  in  ejectment?  An  improper  demand  for  relief  is 
not  ground  for  demurrer.  State  v.  Smith,  14  Wis.  564.  In 
Tewksbury  v.  Schulenberg,  41  Wis.  584,  the  complaint  set  out  a 
good  cause  of  action  to  recover  tolls  for  passing  the  defendant's 
logs  over  the  plaintiff's  dam  and  slides,  and  demands  judgment 
in  money,  and  also  that  it  be  declared  a  lien  on  the  logs.  On 
demurrer  to  the  complaint,  it  was  held  that  a  demand  for  a 
greater  or  different  relief  than  the  averments  of  the  complaint 
show  the  plaintiff  entitled  to  is  not  one  of  the  grounds  of  de- 
murrer under  our  statutes.  It  follows  that  the  mere  prayer  for 
judgment  for  cancellation  of  any  title  the  defendants  may  have 
in  the  premises  is  not  sufficient  to  make  a  cause  of  action,  or 
make   the   complaint   demurrable.      To  constitute  a  complaint, 


840  DEMURRERS.  [ChaP.  VI. 

there  must  be  "a  plain  and  concise  statement  of  the  facts  con- 
stituting each  cause  of  action."  Section  2346,  subd.  2  Rev.  St. 
These  complaints  do  not  state  a  single  fact  which  would  entitle 
the  plaintiff  to  such  relief.  (1)  The  plaintiff  is  not  in  posses- 
sion. (2)  No  specific  claim  of  the  defendants  is  stated,  and 
there  is  no  averment  that  they  ever  relied  upon  any  specific 
claim  or  title.  No  facts  are  stated  to  show  that  there  is  any 
cloud  on  the  plaintiff's  title  to  be  removed.  In  short,  there  are 
no  averments  whatever  which  constitute  any  second  cause  of 
action  upon  which  the  prayer  for  relief,  beyond  that  in  eject- 
ment, could  be  based.  I  do  not  understand  that  the  learned 
counsel  of  the  appellants  seriously  contend  that  there  are  any 
such  averments,  but  reliance  is  placed  on  the  law  that  none  are 
necessary,  and  that  the  prayer  is  sufficient.  The  demurrers  were 
properly  overruled. 

The  order  of  the  circuit  court  in  each  case  is  affirmed.* 


*Compare  Faesi  v.  Goetz,  15  Wis   231,  ante,  p.  488. 


INDEX. 


[BEFEBENCES   ABE   TO   THE  PAGES.] 

ABATEMENT— 

plea  in,  331,  628. 
ACCOUNT  STATED,  102. 
ACCOUNTING,  127.  265. 

ACTION,  CIVIL— 

abatement  and  survival,  14,  20,  25. 
forms  abolished,  81,  85,  97,  102. 
general  nature,  1,  147. 

contract,  express  or  implied,  55,  59. 

contract  or  tort,  45,  47,  49,  52,  61,  64,  69,  71. 

legal  or  equitable,  97,  98,  102,  104,  109,  111,  114,  117,  130. 

local  or  transitory,  89,  785. 

real  actions,  27,  30. 

torts,  78,  81,  85,  89,  94. 
special  proceedings,  138,  142,  145,  147,  150,  154. 
theory  of  action,  45,  61,  64,  69,  71,  97,  98,  102,  111,  830. 

AGENTS— 

actions  by,  1852. 

authority  of,  pleading,  394,  460. 

AIDER— 

by  subsequent  pleading,  27,  422,  815. 

ALTERATION,  662. 

ANTICIPATING  DEFENCES,  437,  622,  623. 

ASSIGNMENT— 

debt  secured  by  mortgage,  165,  170. 

for  collection,  etc.,  199,  201,  205,  206. 

indorsement,  181. 

rights  of  action  ex  delicto,  210. 
ASSUMPSIT,  25,  14. 
BILLS  AND  NOTES— 

alterations,  662. 

consideration,  669. 

execution,  denial  of,  etc.,  580,  584,  597,  631n. 

payment,  defence  of,  626,  669. 

transfer  and  assignment,  165,  170,  175,  181,  183n,  199. 

841 


842  INDEX, 

[kefeBENCES   ABE   TO   THE   PAGES.] 

BONDS— 

consideration,  420,  422n. 
payment,  defence  of,  681. 

CAPACITY  TO  SUE,  415,  826.  827. 
CAUSE,  PLEADING,  414. 
CAUSE  OF  ACTION— 
elements  of, 

duty  or  obligation,  6,  8,  19,  23,  30,  33. 

right  or  interest,  5,  27,  35,  37. 

wrong  or  breach,  10,  37,  434. 
identity  of,  37. 
nature, 

contract,  express  or  implied,  55,  59. 

contract  or  tort,  14,  19,  20,  23,  25,  45,  47,  49,  52,  61,  64,  69,  71. 

direct  or  consequential  injuries,  81,  85,  89,  94. 

legal    or    equitable,    32,    35,    37,    98,    102,    104,    109,    111,    114, 
117,  130,  132. 

real  or  personal,  27,  30. 
single  cause  of  action,  479,  484. 

accounts,  items  of,  500. 

breaches  of  contract,  518,  522,  525. 

connected  torts,  489. 

debt  and  mortgage,  488. 

fraud  and  warranty,  69. 

injuries  to  person  and  property,  505,  511,  514. 

injunction  and  ejectment,  491. 

recurring  injuries,  523,  526. 

reformation  and  enforcement  of  contracts,  122,  528,  531,  533,  534. 

rescission,  restoration,  etc.,  536,  540,  705. 

slander,  imputing  several  offenses,  447. 

CHAMPERTY,  205. 

COMMON  COUNTS— 

available,  when,  52,  59,  456,  459. 
promise,  8,  59. 

CONCLUSIONS  OF  LAW,  27,  61,  355,  356,  362,  368,  369,  379,  384,  386 
392,  394,  397,  444. 

CONDITIONS— 

matter  of  defence,  427,  671. 
performance,  422,  425,  439. 

CONTRACTS— 

breach,  pleading,  431. 

consideration,  420,  425,  669. 

illegality,  665,  671. 

reformation,  rescission,  etc.,  32,  104,  122. 
CONVERSION,   14,  49,  71,  94. 


INDEX.  843 

[BEFEBENCES    ABE   TO   THE    PAGES.] 

CORPORATIONS— 

pleading  existence,  417,  419,  420n. 
COUNTER-CLAIMS— 

general  nature,  725,  735. 
when  allowed,  729,  740,  742, 
COVERTURE,  PLEADING,  661. 
DEATH,  ACTIONS  FOR,  439,  656. 
DEFEASANCE,  PLEADING,  429,  437. 
DEFENCES,  UNION  OF— 
abatement  and  bar,  745. 
consistency,  747,  749,  752,  754. 

effect  of  denials  and  new  matter,  749,  752,  755,  759. 
separate  statement,  743. 
DEFENDANTS,  JOINDER  OF— 
in  actions  of, 

ejectment,   284. 

foreclosure,  329,  339,  345. 

injunction,  317,  318,  327. 

judgment  creditors'  actions,  323,  345. 

money  had  and  received,  290. 

replevin,  286. 

rescission,  348. 

Specific  performance,  trusts,  etc.,  338,  340. 

will  contests,  342. 
distinct  grounds  of  liability,  272,  273. 
persons,  cla«ses  of — 

advers*  claimants,  317,  327. 

grantees  and  incumbrancers,  323,  338,  345. 

heirs  and  legatees,  339,  342. 

husband  and  wife,  3.16,  337. 

master  and  servant,  282,  545. 

mortgagor  and  debtor,  329. 

principal  and  guarantor,  294,  296. 

promisors,  290,  331,  348. 

property  owners,  333. 

stockholders,  316. 

survivor  and  personal  representative,  298,  304,  308. 

tort  feasors,  273,  274,  275,  318,  327,  333,  334. 

trustee  and  beneficiary,  340. 

unwilling  plaintiff,  310,  313. 
DEMURRERS— 

admission  by,  in  general,  785,  786,  803,  807,  809. 

conclusions,  787,  797. 

damages,  805. 

foreign  law,  789,  791. 

immaterial  matter,  796,  801. 

matter  judicially  noticed,  799. 


844  INDEX. 

[bb:febences  abe  to  the  pages.] 

DEMURRERS— Conti  nued. 

grounds  of,  in  general,  590,  819,  821,  822. 
action  pending,  819. 
defect  of  parties,  836. 
erroneous  prayer,  97,  833,  838. 
extrinsic  matters,  819,  820. 
facts,  failure  to  state,  71,  111,  242,  415,  830,  834. 
jurisdiction,  lack  of,  822. 
legal  capacity  to  sue,  lack  of,  824,  826,  827. 
misjoinder  of  actions,  563,  822,  837,  838. 
statute  of  limitations,  829. 
opening  the  record.  5   8132,  815. 

DENIALS— 

argumentative,  603,  607,  609. 

certainty,  597,  600,  610,  611,  616. 

conclusions,  denial  of,  581. 

form,  578,  581,  611. 

negative  pregnant,  580,  594,  596,  599,  606. 

sham  denials,  618. 

substance,  577,  580,  581,  583,  584,  587,  590,  592,  606. 

time,  596. 

value  and  amount,  592, 
DIVORCE,  NATURE  OF  THE  PROCEEDING,  142. 
EJECTMENT- 

defences,  709,  716.  718. 

title,  35,  162,  165. 

EQUITABLE  DEFENCES— 

common  law,  at.  686,  709. 

code,  under,  698,  705,  708,  715,  716,  717n.,  718,  720. 

equity,  in.  687.  689.  695. 
EVIDENCE,  PLEADING,  363,  389,  393. 
EXECUTORS  AND  ADMINISTRATORS— 

pleading  in  actions  by  and  against,  412,  415. 

summary  proceedings,  against,  154. 
FACTS— 

how  stated,  409.  431,  456.  460. 

what  to  be  stated,  379,  384,  386,  401,  453,  456,  459. 
FRAUD— 

Defence  of,  646,  647. 

pleading,  386,  392. 

FRAUDS,  STATUTE  OF— 
Defence  of,  675,  678,  680. 
pleading  compliance  with,  425. 

GARNISHMENT,  NATURE  OF  PROCEEDING,  109. 

INDUCEMENT,  DEFINED,  55. 


INDEX. 
[BEFEEENCES    ABE    TO    THE   PAGES.] 

JOINDER  OF  'ACTIONS— 

causes  that  may  be  united, 

arising  out  of  same  transaction,  562,  563,  567,  571,  573. 
consistency,  546,  549,  557. 
contract  and  tort,  19,  545,  560,  562,  567. 
legal  and  equitable,  117,  534,  491. 
as  affected  by  parties,  542,  545. 
separate  statements  or  counts, 

aider  by  reference,  492,  494,  496. 
statement,  484,  488,  489,  491. 
JUDICIAL  NOTICE,  407,  499. 
LIMITATIONS,  STATUTE  OF,  684,   829. 
LEGAL  EFFECT,  PLEADING,  399,  456,  459, '460. 
MALICIOUS   PROSECUTION— 

defences  under  general  denial,  651,  655. 
MASTER  AND  SERVANT— 
actions  against,  282,  545. 
MANDAMUS,   145,   150. 
MECHANICS'  LIENS— 

enforcement,   30. 
MORTGAGES— 

foreclosure  of,  329,  339.  813. 

MONEY  HAD  AND  RECEIVED,  456,  61. 

NEGLIGENCE— 

defences  under  general  denial,  623,  657. 
joint  and  several  liability,  273,  274,   282. 
pleading,    365,   368,   369,   370,   375,   379. 

NEW  MATTER— 

admission  by  pleading,  634,  640,  6^. 
defence  of, 

advice  of  counsel,  651. 

alteration  of  instrument,  662. 

arrest  by  lawful  authority,  636,  642. 

conditions  subsequent,  427,  671. 

consideration,  want  of,  420,  469. 

contributory  negligence,  623,  657,  660n.,  777. 

coverture,  661. 

defeasance,  429,  437. 

fellow  servant,  act  of,  657. 

fraud,  647,  705. 

frauds,  statute  of,  675,  677n.,  678,  680. 

gratuitous  services,  663,  664n. 

illegality,  665,  671. 

infancy,  780. 

insured,  act  of,  646. 

limitations,  statute  of,  640,  684,  829. 


845 


846  INDEX. 

[EETEBENCES    ABE   TO    THE   PAOES.] 

NEW  MATTER— Continued. 

mistake,  708,   716. 

payment,  626,  669,  681. 

probable  cause,  655. 

recaption  of  prisoner,  649. 

recaption  of  property,  654. 

self  defence,  656. 

truth  in  slander  and  libel,  652. 
pleading,   634,  636,   640,   642. 
NEW  ASSIGNMENT.  765,  767. 
NON  PAYMENT,  434,  626. 
PAYMENT,  681,  669. 
PLAINTIFFS,  JOINDER  OF— 

accounting,  in  actions  for,  265. 

Assignees,  239. 

assignor  and  assignee,  231,  261. 

executors  and  administrators,  313, 

judgment  creditors,  213,  263. 

legatees,  241. 

persons  severally  defrauded,  214,  218,  220,  233. 

promises,  235,  249,  250,  253,  256,  310. 

property  owners,  215,  225,  227,  257,  260. 

representatives  of  voluntary  associations,  269. 

sureties,  246,  247. 

survivors  and  personal  representatives,  242. 

tenants  in  common,  220,  253,  257,  259,  260. 

PRAYER  FOR  RELIEF— 

erroneous,  effect,  97,  98,  102,  833. 
full  relief,  479. 
general  prayer,  466.  468.  479. 
specific  prayer,  462,  473,  475,  476. 

PROMISE— 

in  implied  and  quasi  contracts,  8,  59,  405. 

RATIFICATION— 

reply  of,  780. 

REAL  PARTY  IN  INTEREST— 

actions  on  assigned  and  pledged  demands,  175,  181,  199,  201,  205, 

206,  210,  261. 
actions  on  contracts,  183,  185,  188,  191,  193,  194,  197. 
equitable  actions,  166. 
partial  assignee,  261. 
real  actions,  35,  160,  162,  165,  169,  170. 
representative  of  joint  obligee,  242. 
tort  actions.  176.  179. 

RECOUPMENT,  725. 


INDEX.  847 

[references  are  to  the  pages.] 

REFORMATION— 

action  for,  32,  122,  528.  534. 
necessity,  32,  687,  708. 

RELIEF— 

equitable  in  action  at  law,  114. 

full  relief,  528,  531. 

general  prayer,  effect,  97,  98,  462,  466,  468,  479. 

legal,  on  equitable  right,  32,  35,  109,  160,  162,  165,  169,  183. 

legal,  where  proof  of  case  in  equity  fails,  117,  122,  127,  130,  132. 

specific  prayer,  462.  473,  475,  476. 
REPLEVIN— 

action,  27,  94. 

parties,  169,  170,  286. 

title,  160,  169,  170. 

REPLY— 

departure,  773,  774. 
issues,  777,  779,  780. 
necessary,  when,  765,  770,  771,  775,  777. 
new  assignment,  765,  767. 
office  of,  769. 
RES  JUDICATA,  37,  500,  505,  511,  514,  525,  526. 

SCIRE  FACIAS,  147. 
SET-OFF,  729. 
SLANDER  AND  LIBEL— 

defences  under  general  denial,  652. 

justification,  652. 

pleading,  innuendo  and  colloquium,  447. 

SELF  DEFENCE,  656. 

SPECIFIC  PERFORMANCE,  10,  98,  130. 

TIME— 

pleading,  452. 

TITLE— 

pleading.  355,  356,  362,  363. 

TORT— 

waiver  of,  14,  52,  456. 

TRESPASS— 

action,  78,  81,  85,  89. 

justification  and  excuse,  636,  642,  654. 

TROVER,  14,  94. 

TRUSTS  AND  TRUSTEES— 

actions  by  trustee  of  express  trusts,  185,  188,  191. 
actions  by  beneficiary  against  wrongdoer,  160,  166,  169. 
actions  at  law  concerning,  109. 
actions  by  beneficiary  on  contracts,  193.. 


848  INDEX. 

[references    ABE    TO    THE    PAGES.] 

VARIANCE— 

in  general,  6,  47. 

action  on  contract  and  proof  of  tort.  47,  52. 

action  for  tort  and  proof  of  contract,  49. 

action  on  express  contract  and  proof  of  implied,  55,  59. 

action  for  specific  tort  and  proof  of  different,  78,  85,  89,  94. 

action  in  equity  and  proof  of  case  at  law.  117,  127,  132. 

allegation  of  performance  and  proof  of  excuse  or  waiver,  453,  456. 
WILL  CONTESTS— 

nature  of  proceeding,  138. 

parties,  343. 


LAW  LIBRARY 

UNIVERSITY  OF  TAT  iFnuxTTA 


A/V    000  770  779    7 


